Preview
Kerry P. Zeiler (SBN 233944)
1 ZEILER LAW GROUP
14205 SE 36th St Ste 100
2 Bellevue, WA 98006
(714) 953-6600
3 kerry@zeilerlawgroup.com
4
Attorney for Plaintiff,
5 RAD COMMUNICATIONS, INC.
6
7
8 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF LOS ANGELES
10
11 RAD COMMUNICATIONS, INC., ) Case No.:
) COMPLAINT
12 Plaintiff, )
13 ) 1) BAD FAITH (INSURANCE)
vs. ) 2) BAD FAITH (INSURANCE)
14
) 3) INTENTIONAL
15 INTERFERENCE WITH
SECURITY NATIONAL INSURANCE ) CONTRACTUAL ADVANTAGE
16 COMPANY, AMTRUST FINANCIAL ) 4) CONFLICT COUNSEL
SERVICES GROUP, AND AMTRUST ) COMPENSATION
17
NORTH AMERICA, )
18 Defendants. )
19 )
)
20
)
21 )
22
23 JURISDICTIONAL ALLEGATIONS
24 1. Plaintiffs RAD COMMUNICATIONS, INC. (herein “RAD”) is a business
25 incorporated in the State of Washington in 2018 with its primary place of business in the
26 County of Los Angeles, State of California.
27 2. Defendants SECURITY NATIONAL INSURANCE COMPANY (herein
28 “Security National”) is a nationwide insurer, incorporated in Delaware, with its primary place
1
COMPLAINT
1 of business in Cleveland, Ohio. Based on information and belief, Security National is
2 registered and licensed to issue policies of commercial insurance in the states of Washington
3 and California.
4 3. AMTRUST FINANCIAL SERVICES GROUP is a financial services and insurance
5 holding company that owns multiple affiliate insurers, including Security National.
6 4. AMTRUST NORTH AMERICA (herein “Amtrust”) is a national insurer
7 domiciled in Delaware. It is a wholly owned insurance servicing and adjusting company that
8 services and adjusts claims for AmTrust Financial Services Group-owned and affiliated
9 insurers, including Security National.
10 5. At all relevant times, Security National was the underwriter for a policy of general
11 liability insurance issued to RAD Communications, Inc. on July 11, 2018, policy number
12 NA155442100 (See Exhibit 1). The policy covered the period from July 11, 2018, through
13 July 11, 2019, with a policy limit of $1,000,000 per occurrence and a policy aggregate of
14 $2,000,000.00.
15 6. The general contractor for the project at issue, MASTEC (herein “Mastec”), a
16 corporation domiciled in the State of Florida, was listed as an additional insured on the policy.
17 7. On April 29, 2021, plaintiff and Mastec were sued in San Francisco County Superior
18 Court in a case styled, Gercinta, LLC and Cinta Aveda Institute, Inc. v. Mastec North America,
19 Inc. and RAD Communications, Inc., case number CGC-21-591432, alleging various property
20 damage due to water leakage from a subterranean hole dug by RAD while installing high speed
21 cable wire for Mastec. The basic allegation from the Gercinta case was that the hole in the
22 ground to install cable was not properly covered, and after a rainfall there was flooding to
23 Gercinta’s business located in the basement of a commercial building in San Francisco,
24 California.
25 8. RAD contacted their insurer, Security National, and tendered the lawsuit on or
26 about April 15, 2021. Mastec, which was also sued by Gercinta, tendered the lawsuit to
27 defendants on April 16, 2021. (See Exhibit 2).
28 9. The policy of insurance includes a duty to defend.
2
COMPLAINT
1 10. Security National delegated Amtrust to adjust the claim. Amtrust took no action
2 other than to say it was “investigating” and provided no defense to RAD or Mastec.
3 11. Accordingly, Mastec retained private counsel to litigate and filed a cross-complaint
4 against RAD for indemnity. Then, the Gercinta plaintiffs submitted a demand for
5 approximately $400,000.00 to Mastec for the value of their losses. Mastec seized and withheld
6 receivables payable to RAD of this amount to “protect their interests.”
7 12. The Gercinta lawsuit proceeded, and Gercinta sought RAD’s default in that case.
8 When RAD’s pleas to their insurer and the adjuster Amtrust went unanswered, RAD retained
9 the services of private counsel Kerry Zeiler, Zeiler Law Group (herein “Zeiler”).
10 13. Zeiler negotiated with Gercinta for RAD to file an Answer and prepared and filed
11 one on RAD’s behalf. He then proceeded to litigate the defense of the Gercinta lawsuit on
12 RAD's behalf, conducting discovery and negotiating with the Gercinta plaintiffs and Mastec.
13 14. Mastec’s seizure of more than $400,000 for receivables owed to RAD on work
14 already completed in order to “secure its interests,” was devastating. RAD purchased the
15 policy of insurance for the same reason it was sold by the defendants: to prevent such an
16 occurrence imperiling RAD’s assets. RAD was left unable to pay sub-contractors, had to
17 abandon already bid upon work, lay off crews, and shut down its operations in the State of
18 Washington, all to its general loss subject to proof at the time of trial.
19 15. RAD suffered significant reputational harm from the defendants’ failure to abide by
20 their insurance contracts, resulting in additional, lasting reputational harm and general
21 damages in an amount subject to proof at trial.
22 16. RAD’s business was forcibly reduced because it could not collect on its outstanding
23 receivables from one of its largest customers because its insurer, Security National, refused to
24 provide a defense and indemnify the additional insured, Mastec. This has resulted in a
25 demonstrable loss of opportunity and consequential damages, all in an amount subject to
26 proof at the time of trial.
27 17. Zeiler contacted AmTrust multiple times, demanding on RAD’s behalf that
28 AmTrust identify its rationale for not providing a defense when a duty to do so exists under
3
COMPLAINT
1 the policy. RAD also requested that the defendants provide a duplicate of the entire insurance
2 policy and any riders that might support the defendants’ conduct. Defendants took no action
3 and provided no evidence, decision letters, or other documentation.
4 18. On May 16, 2022, Zeiler sent correspondence to AmTrust and Security National
5 demanding they immediately provide the policy benefits to RAD and also defend the
6 additional insured, Mastec.
7 19. In response, on June 22, 2022, the defendants sent coverage letters to RAD and
8 Mastec indicating there was likely coverage for the Gercinta action but claimed they were “still
9 investigating.”
10 20. Defendants took no other action.
11 21. On October 31, 2022, Zeiler sent a certified letter to Security National stating that
12 RAD would separately sue the defendants for their bad faith failure to defend, failure to
13 indemnify, for loss and harm suffered by RAD due to the defendants’ failure to meet the
14 obligations of their policy of insurance, and for all consequential damages, pointing out that
15 the aggregate damages were estimated to exceed $2,000,000.00. (See Exhibit 3).
16 22. On December 21, 2022, the defendants sent RAD a letter indicating they were
17 providing a defense to RAD in the Gercinta case with a reservation of rights. (See Exhibit 4).
18 23. By this time, Zeiler had negotiated the resolution of the cross-complaint by Mastec,
19 had agreed to file an amended Answer admitting liability to the Gercinta complaint, and
20 Gercinta agreed it would then dismiss Mastec from the action. Because the dismissal was
21 without prejudice, Mastec refused to return the seized receivables to RAD until the defendants
22 completely indemnified Mastec for all its incurred fees and costs.
23 24. Zeiler then sent correspondence to the defendants indicating receipt of the notice it
24 was now providing defense counsel barely three months before trial, but stating that RAD had
25 elected under Cal. Civ. Code § 2860 to retain Zeiler as conflict counsel. Zeiler’s
26 correspondence provided his billable rates, asserted cooperation with retained panel counsel,
27 and indicated he would accept as a reduced fee the hourly rate of a partner of equivalent
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4
COMPLAINT
1 experience the defendants would routinely pay to its panel counsel. No response from the
2 defendants was forthcoming.
3 25. Zeiler provided separately calculated monthly invoicing to the defendants
4 commencing on the date they’d retained panel counsel and notified RAD they were providing
5 separate counsel: December 21, 2022. Defendants did not pay these sums.
6 26. The Gercinta case was resolved following a full-day mediation negotiated by Zeiler
7 and panel counsel with the Gercinta plaintiffs. The defendants sent a claims representative;
8 panel counsel attended, and RAD’s principals and Zeiler also attended.
9 27. The case was resolved when the defendants agreed to pay the Gercinta plaintiffs a
10 sum of money under the policy. However, those sums were not paid until May 2023.
11 28. RAD learned in June of 2023 that the defendants had paid all Mastec’s outstanding
12 private attorney’s fees incurred in the Gercinta case in January 2023, but did not provide a
13 release.
14 29. On or about July 20, 2023, Zeiler negotiated the release of RAD’s retained
15 receivables from Mastec, which had been held due to the defendants' failure to provide the
16 benefits of the insurance policy and indemnify Mastec.
17 30. RAD continued to urge the defendants to pay for its incurred private attorney’s fees,
18 since the Gercinta case settled in April 2023, but defendants did not.
19 31. On or about October 2023, the defendants paid a portion of Zeiler’s outstanding fees
20 incurred by RAD in the Gercinta case but refused to pay for any fees incurred by Zeiler after
21 the date the defendants say they retained panel counsel to defend RAD in the Gercinta action.
22 VENUE ALLEGATIONS
23 32. Venue is appropriate in Los Angeles County because the contractor was entered into
24 in this county.
25 33. The insurance policy was purchased to cover jobs in the State of California, and the
26 contract was entered into in California.
27 34. The issue of Cumis or conflict counsel and the obligation of the insurer to pay the
28 fees for such counsel is resolved by way of arbitration per Cal. Civ. Code § 2860 (c)(2). A
request for arbitration to the defendants was ignored.
5
COMPLAINT
1 FIRST CAUSE OF ACTION— BAD FAITH
(Against Defendants).
2
3 35. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 34,
4 inclusive, as though fully set forth herein.
5 36. The defendants issued a general liability insurance policy to RAD
6 Communications, Inc., which provided a duty to defend and included Mastec as an
7 additional insured.
8 37. The defendants did not provide a defense to RAD, forcing RAD to obtain private
9 counsel.
10 38. The defendants did not provide a defense to Mastec, an additional insured under
11 the policy, resulting in Mastec seizing more than $400,000 in receivables owed to RAD to
12 “secure their interests,” causing economic havoc to RAD resulting in tremendous,
13 accumulated damages, including the shuttering of RAD’s operations in the State of
14 Washington.
15 39. The defendants finally provided a defense to RAD on December 21, 2022 after
16 private counsel Zeiler threatened a bad faith action, but the Gercinta case was nearly
17 resolved by that point with the trial less than three months away.
18 40. The defendants did not pay Mastec’s incurred private attorney fees despite being
19 obligated to provide a defense under the terms of the policy and continuously delayed doing
20 so until January 2023 or later.
21 41. The defendants did not pay any portion of RAD’s incurred attorney’s fees for the
22 defense of the Gercinta case and delayed doing so until October 2023, at least six months
23 after the Gercinta case was settled.
24 42. A failure or delay in providing policy benefits due to an insured is actionable as the
25 tort of bad faith or a breach of the implied covenant of good faith and fair dealing.
26 43. The plaintiffs have been damaged and seek an award of their incurred losses,
27 expectation damages, costs, and attorney’s fees in an amount subject to proof at trial.
28 44. The defendants’ failure and delay to provide benefits that they owed to their insured
under the insurance contract is prima facie evidence of their bad faith and breach, but the
6
COMPLAINT
1 failure to provide benefits due under the policy in light of RAD’s communication to the
2 defendants of the harm they were suffering because Mastec seized RAD’s assets to “make it
3 whole” is reprehensible conduct sufficient to justify an award of punitive damages. The very
4 purpose of purchasing a policy of insurance is to prevent RAD’s assets from being taken or
5 encumbered for a covered loss. The facts here evidence both a corporate policy and practice
6 by the insurer defendants of refusing to provide insurance policy benefits, using facile
7 subterfuge such as claiming an “investigation” was ongoing after RAD had tendered the
8 Gercinta lawsuit.
9 45. Further, only after being warned that RAD would bring a bad faith claim on
10 October 31, 2022, did the defendants finally fulfill their duty to defend and provide policy
11 benefits to RAD. This occurred more than a year and a half after the Gercinta lawsuit was
12 tendered. Worse, the defendants refused to provide a bargained-for defense to the additional
13 insured, Mastec. Their apathy and reckless disregard for the financial repercussions suffered
14 by RAD, leading to the shutdown of its operations in Washington state and employee
15 layoffs, serve as clear evidence of a reckless disregard for the rights of their own insured. This
16 conduct stems from the defendant’s refusal to adhere to policy requirements, prioritizing
17 profit maximization over fulfilling their obligations.
18
19 SECOND CAUSE OF ACTION— BAD FAITH
FAILURE TO SETTLE
20 (Against Defendants).
21
22 46. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 45,
23 inclusive, as though fully set forth herein.
24 47. The defendants are insurers contracted to provide policy benefits under the terms of
25 a general liability policy. (See Exhibit 1).
26 48. On or about April 2021, RAD tendered the Gercinta lawsuit to the defendants and
27 requested a defense under the terms of the policy. The same month, the additional insured,
28 Mastec, also tendered the Gercinta lawsuit and requested a defense under the policy.
7
COMPLAINT
1 49. Mastec then cross-complained against RAD for indemnity, demanding RAD
2 indemnify them from the Gercinta action, provide counsel to them, and pay all expenses.
3 50. Defendants refused to settle the claims against RAD, for which RAD was required
4 to pay counsel.
5 51. The defendants finally provided a defense to RAD on December 21, 2022, after
6 private counsel Zeiler threatened a bad faith action. But the Gercinta case was nearly
7 resolved by that point with the trial less than three months away, and RAD had to incur the
8 cost, expense and impact to its operations of the defendants’ failure to settle the claims
9 against it within the policy limits.
10 52. Based on information and belief, no effort was made to pay the sums owing to
11 Mastec were forthcoming until after the case had been settled and resolved, in or about July
12 of 2023.
13 53. Defendants engaged in bad faith conduct by refusing to settle the claims against
14 RAD from Mastec, all to their general damage in an amount subject to proof at trial.
15
16 THIRD CAUSE OF ACTION— INTENTIONAL INTERFERENCE WITH CONTRACTUAL
ADVANTAGE
17 (Against Defendants).
18
19 54. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 53,
20 inclusive, as though fully set forth herein.
21 55. The defendants are insurers contracted to provide policy benefits under the terms of
22 a general liability policy. (See Exhibit 1).
23 56. On or about April 2021, RAD tendered the Gercinta lawsuit to the defendants and
24 requested a defense under the terms of the policy. The same month, the additional insured,
25 Mastec, also tendered the Gercinta lawsuit and requested a defense under the policy.
26 57. The defendants refused to provide the bargained-for policy benefits to RAD or to
27 indemnify and provide a defense to the additional insured, Mastec.
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8
COMPLAINT
1 58. Mastec then seized over $400,000 in receivables it owed RAD for work already
2 performed and refused to pay any additional invoices for services until the Gercinta
3 plaintiff’s claims were resolved and its out-of-pocket attorney’s fees were paid. Mastec and
4 its wholly owned subsidiary, Sefnco, also a RAD client, likewise froze payments to RAD.
5 59. This reaction by Mastec to protect itself from the harms for which RAD purchased
6 a policy of insurance from the defendants and named Mastec as an additional insured
7 damaged RAD’s business and resulted in the loss of hundreds of thousands of dollars in
8 revenue RAD had routinely received from Mastec and Sefnco.
9 60. The defendants' intentional refusal to delay and fail to provide benefits under the
10 insurance policy undermined the relationships between RAD and both Mastec and Sefnco.
11 Those companies would continue to seek RAD’s assistance on projects for which RAD had
12 developed industry expertise, but while its receivables were being held, RAD was forced to
13 refuse the work and lost already bid on and accepted jobs.
14 61. RAD has been permanently damaged by the defendant’s knowing interference in its
15 contractual relationship with Mastec, the additional insured, and Mastec’s subsidiaries.
16 62. A failure to provide benefits due to an insured under the policy is actionable as the
17 tort of bad faith or a breach of the implied covenant of good faith and fair dealing.
18 63. The plaintiffs have been damaged, and seek an award of their incurred losses,
19 expectation damages, costs, and fees in an amount subject to proof at trial.
20 64. The defendants’ failure and delay to provide benefits that they owed to their insured
21 under the insurance contract is prima facie evidence of their bad faith and breach, but the
22 failure to provide benefits due under the policy in light of RAD’s communication to the
23 defendants of the harm they were suffering because Mastec seized RAD’s assets to “make it
24 whole” is reprehensible conduct sufficient to justify an award of punitive damages. The very
25 purpose of purchasing a policy of insurance is to prevent RAD’s assets from being taken or
26 encumbered for a covered loss. The facts here evidence both a corporate policy and practice
27 by the insurer defendants of refusing to provide insurance policy benefits, using facile
28
9
COMPLAINT
1 subterfuge such as claiming an “investigation” was ongoing after RAD had tendered the
2 Gercinta lawsuit.
3 65. Further, only after being warned that RAD would bring a bad faith claim on
4 October 31, 2022, did the defendants finally fulfill their duty to defend and provide policy
5 benefits to RAD. This occurred more than a year and a half after the Gercinta lawsuit was
6 tendered. Worse, the defendants refused to provide a bargained-for defense to the additional
7 insured, Mastec. Their apathy and reckless disregard for the financial repercussions suffered
8 by RAD, leading to the shutdown of its operations in Washington state and employee
9 layoffs, serve as clear evidence of a reckless disregard for the rights of their own insured. This
10 conduct stems from the defendant’s refusal to adhere to policy requirements, prioritizing
11 profit maximization over fulfilling their obligations.
12
13
FOURTH CAUSE OF ACTION— CONFLICT COUNSEL ARBITRATION
14 (CAL. CIV. CODE § 2860 (C)).
(Against Defendants).
15
16 66. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 65,
17 inclusive, as though fully set forth herein.
18 67. RAD tendered the Gercinta lawsuit to the defendants in April of 2021 and
19 requested a defense.
20 68. The defendants did not agree to provide RAD defense counsel until December 21,
21 2022, and did so with a reservation of rights.
22 69. The plaintiff notified the defendants that it intended to keep its privately retained
23 attorney, Zeiler, since RAD had already informed the defendants that it intended to sue for
24 bad faith, and the defendants were providing a defense with a reservation of rights.
25 70. Zeiler sent the defendants notice under Cal. Civ. Code § 2860 that he was staying in
26 the Gercinta case at RAD’s insistence and that since there was a reservation of rights, the
27 insurer was obligated under that code section to pay Zeiler’s fees at a comparable rate to
28 those for their panel counsel.
10
COMPLAINT
1 71. Zeiler participated in all matters and proceedings and had already negotiated a
2 resolution to Mastec's cross-complaint and refined the case issues for a pending resolution
3 by the time the defendants bothered to provide RAD with its policy benefits. The trial was
4 imminent, set to occur in March 2023.
5 72. Zeiler requested that the defendants either pay an equivalent rate they would pay
6 panel counsel with Zeiler’s experience or pay Zeiler’s contractual rate agreed to by RAD.
7 73. The defendants made no payments toward RAD’s incurred attorney’s fees, or
8 Zeiler’s invoices for conflict counsel work.
9 74. Zeiler billed RAD and copied the defendants monthly for all work performed on
10 the Gercinta case.
11 75. Zeiler cooperated with the defendants’ retained panel counsel and participated in
12 every proceeding and conference.
13 76. The case was resolved at a mediation on April 25, 2023, and a final settlement was
14 entered into shortly thereafter. Zeiler participated in the all-day mediation and drafted
15 settlement documents.
16 77. In October 2023, the defendants finally made a payment toward RAD’s incurred
17 attorney’s fees. Still, they did not pay the entire sum RAD incurred to Zeiler for defense of
18 the Gercinta case and refused to pay any incurred fees after December 21, 2022.
19 78. By the statute's terms requiring the defendants to compensate Zeiler as conflict
20 counsel, Cal. Civ. Code § 2860 (c), disputes must be arbitrated. RAD’s request that the
21 defendants proceed with an arbitration was ignored.
22 79. The plaintiff seeks an award of such damages and relief as the arbitrators deem just
23 and proper, including all of the damage remedies available to plaintiffs and their incurred
24 attorney’s fees and costs for having to litigate this issue.
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11
COMPLAINT
1
2 PRAYER
3 PLAINTIFFS pray for damages and relief against the defendants, as follows:
4 1) All general damages proven at trial.
5 2) All special damages proven at trial.
6 3) Attorney’s fees and costs.
7 4) Punitive damages.
8 5) Such other relief as the court may deem just and proper.
9 Dated this 5th Day of July 2024
10 Respectfully,
11 By:
12 Kerry P. Zeiler (SBN 233944)
Attorney for Plaintiff,
13 RAD COMMUNICATIONS, INC.
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12
COMPLAINT
EXHIBIT 1
EXHIBIT 2
Christopher T. Sakauye One Embarcadero Center, Suite 2600
Associate San Francisco, CA 94111
Direct Line: (415) 677-5510 Telephone: (415) 398-3344
cts@severson.com Facsimile: (415) 956-0439
April 16, 2021
Via Electronic Mail:
David Arias Anthony Mano
AmTrust North America RAD Communications
P.O. Box 89404 8255 Quinault Road
Cleveland, OH 44101 Blaine, WA 98230
David.Arias@amtrustgroup.com anthonymano@radcommunicationsinc.com
Re: Property Damage at 305 Kearny Street, San Francisco, CA 94108
ESIS Claim No. 49344958701880
Date of Incident: November 4, 2018
Our File No.: 72013-0003
Dear Mr. Arias and Mr. Mano:
We represent MasTec North America (“MasTec”) in connection with the above-
referenced claim. This letter serves as a further request to RAD Communications (“RAD”) to
defend and indemnify MasTec in connection with the following accident.
ACCIDENT FACTS
This property damage claim arises from work done by RAD at the Cinta Aveda Institute
located at 305 Kearny St., San Francisco, CA 94108 (“property”). The Cinta Aveda Institute
(“Cinta Aveda”) contracted with Verizon to install fiber optic cable in the alleyway of its
property. Verizon contracted with MasTec to perform the underground work of placing the fiber
optic cable. MasTec, in turn, contracted with RAD to perform the trenching for this project.
From our review of previous correspondence related to the tender of defense and
indemnity, it appears that there is some confusion regarding the timeline of events regarding this
claim. We have done our best to summarize the correct timeline for your consideration. If you
dispute these facts, we ask that you produce evidence supporting any dispute.
From October 22, 2018 to November 2, 2018, RAD performed the trenching to place a
“hand hole” on the property. Reggie Herrera was the RAD supervisor and Sandro Gutierrez was
the RAD foreman. The “hand hole” was not placed due to complications with the job and RAD
was told to patch up the trench and restore the surrounding area. (Exhibit A.)
72013.0003/15737948.1
San Francisco ~ Orange County
AmTrust North America
April 16, 2021
Page 2
On November 4, 2018, RAD supervisor Reggie Herrera was contacted by Gerard
Gibbons, landlord for the property, who complained of expired construction signs, “black road
surface” that was ruining the floors of the property and a puddle of water that had developed due
to the work RAD performed. (Exhibit B.) On November 8, 2018, Mr. Gibbons took the
attached picture of the affected area. (Exhibit C.) It is our understanding that RAD performed
this work.
On November 11, 2018 and November 13, 2018 Mr. Gibbons again reached out to Mr.
Herrera with updates about the damage. On Wednesday, November 14, 2018 (mistakenly stated
as November 13 in the report), the conditions became worse when a hole developed where RAD
had previously performed patchwork on the property. This resulted in water leaking onto the
property which caused damage. (Exhibit B.)
Below are pictures of the damages from the water intrusion:
A copy of the Demand Letter sent by Cinta Aveda’s attorney is attached for your
consideration. (Exhibit D.)
72013.0003/15737948.1
AmTrust North America
April 16, 2021
Page 3
WRITTEN CONTRACTS AND INDEMNITY PROVISIONS
Prior to the work RAD performed on the property, RAD entered into a written contract
with MasTec. We have attached the contract for your review. (Exhibit E.) Under the contract,
RAD was to perform “underground construction.” The contract between MasTec and RAD also
contained an indemnity provision in paragraph 16. It states in relevant part:
The contract also required RAD to carry certain types and levels of insurance including
Commercial General Liability insurance with limits of at least $2 million. The contract required
RAD to include MasTec as an additional insured. A copy of the insurance certificate is attached.
(Exhibit F.)
Under its contract with MasTec, RAD promised to defend and indemnify MasTec for any
claim for “damage to or destruction or loss of any property arising out of, resulting from, or in
connection with (i) the performance of nonperformance of the Work contemplated” by the
contract. RAD performed trenching work at the property and sent the attached invoice to
MasTec for the work it performed. (Exhibit G.) This claim arises out of property damage
72013.0003/15737948.1
AmTrust North America
April 16, 2021
Page 4
arising out of, resulting from and caused by the work of RAD. Thus, RAD must defend and
indemnify MasTec pursuant to the contract.
RAD also procured an insurance policy that named MasTec as an additional insured
under the policy. Thus, AmTrust is required to defend and indemnify MasTec pursuant to the
terms and conditions of the policy. To date, AmTrust has not confirmed its obligations to defend
and indemnify MasTec in connection with this claim.
Your previous correspondence with ESIS indicates that you believe that the
“underground construction” work RAD performed at the site “may” not have been the same
work that caused the damage or that a different party “may” have performed the trenching work
that caused the water intrusion. We are not aware of any evidence that would support such a
contention. If this is your contention, please immediately forward any evidence you have to
support this claim.
We know that RAD was informed of the property damage shortly after it occurred. RAD
supervisor Reggie Herrera told Cinta Aveda that he would take care of the problem, admitting
responsibility on RAD’s part. RAD even performed an inspection of the property on November
29, 2018 where it was agreed that there was damage to the property. Shortly thereafter, Mr.
Herrera scheduled a restoration company to inspect the property as well on December 3, 2018. It
has not been disputed by any party that the water leakage was caused by RAD’s work at the
property.
In light of the forgoing, MasTec hereby demands that RAD immediately agree to defend
and indemnify MasTec in the above-referenced claim. MasTec also requests that RAD inform its
insurance carrier or carriers of the claim and MasTec’s demand for defense and indemnification,
and demand that each carrier agree to provide MasTec with a defense and indemnity. We would
request that you kindly respond to this letter to advise of the agreement to defend and indemnify
MasTec and to provide us with the identity and contact information for the liability insurance
carrier or carriers whose coverage extends to MasTec as an additional named insured.
Sincerely,
Christopher T. Sakauye
NBK/CTS
Enclosures
cc: MasTec North America
72013.0003/15737948.1
EXHIBIT A
EXHIBIT A
EXHIBIT B
EXHIBIT B
EXHIBIT C
EXHIBIT C
EXHIBIT D
EXHIBIT D
EXHIBIT E
EXHIBIT E
EXHIBIT F
EXHIBIT F
EXHIBIT G
EXHIBIT G
EXHIBIT 3
ZEILER LAW GROUP
ATTORNEYS AT LAW
October 31, 2022
14205 SE 36th Street, Suite 100 Sent via Overnight Mail
Bellevue, WA 98006
(888) 752-1270 Security National Insurance MAPFRE Insurance Company
(951) 963-1260 FAX
Company Attn: Amanda Garcia, Reg. Agent
Attn: Sarah Clemens, Reg. Agent 330 N. Brand Blvd., Ste. 700
4640 Admiralty Way, 5th Floor Glendale, CA 91203
Marina Del Rey, CA 90292
National Union Fire Insurance Co. AMTrust North America
of Pittsburgh, PA David Arias, Adjuster
Offices in California, Minnesota Attn: Melissa DeKoven, Reg. Agent PO Box 4026
& Washington State 2710 Gateway Oaks Drive, Ste. 150N Concord, CA 94524
Sacramento, CA 95833
Re: Gercinta, LLC, et al. v. Mastec North America, Inc., et al.
San Francisco case number
Policy numbers NA155442100, QEXR4697201
To Whom It May Concern,
I write to assert claims on behalf of my client, your insured, RAD
Litigation in the courts of:
Communications, Inc. under the general liability and umbrella policies
State Trial Courts identified here.
State Appellate Courts
Federal District Courts In 2021, RAD Communications, Inc. was sued in the San Francisco Superior
U.S. Bankruptcy Courts Court on a liability claim for work covered under the policies at issue. RAD
Administrative Courts
Communications, Inc. were also sued in the same action by Mastec North
America, Inc., the general contractor, on claims for a contractual and
equitable indemnity. Under the same insurance policies, you insured Mastec
North America, Inc. as an additional insured.
RAD Communications, Inc. and Mastec North America, Inc. both tendered
this lawsuit and asserted claims for their policy benefits. Security National
Insurance Company assigned the claim to an adjuster, David Arias of
AmTrust North America, who is also copied on this correspondence.
Mr. Arias’s involvement has been virtually non-existent, and his
communications have likewise facile. You have failed to tender a defense to
either RAD Communications, Inc., your primary insured, or Mastec North
America, Inc. To date, RAD Communications has incurred $53,153.76 in
http://www.zeilerlawgroup.com
SEND ALL MAIL TO
BELLEVUE OFFICE
Letter to Insurers
Re: Gercinta, LLC, et al. v. Mastec North America, Inc.
October 31, 2022
Page 2 of 2
legal fees and costs to my office related to this case. A demand is made for payment of that entire
sum.
Each of you, has already failed to provide a defense. That will be pursued as a claim for bad faith.
In mitigation, remit the entire incurred attorney’s fees to: Zeiler Law Group Attorney-Client Trust.
My office requires an evergreen retainer of $10,000.00, and this is the clause agreed to by RAD
Communications in their attorney-client fee agreement regarding the San Francisco lawsuit. To
ensure that RAD Communications, Inc. remains represented as you have failed to provide them a
defense, please also replenish RAD’s deposit to my office of $10,000.00 and keep that sum on
deposit at all times while the litigation remains pending.
Further, your additional insured, Mastec North America, Inc., has seized receivables owed to my
client through one of its subsidiaries of over $400,000.00 because of your knowing and willful
failure to provide policy benefits to your additional insured related to this case. As a result, RAD
Communications has been devastated in its business; they are small business tradesmen not able to
absorb a loss of $400,000.00 being held because the insurers they contracted with to insure the
loss at issue are ignoring the claim and refuse to provide benefits.
My client has authorized my office to bring suit against you for your bad faith failure to provide
insurance policy benefits, as well as your failure to defend. This is your notice of these claims.
In mitigation, please remit the outstanding attorney’s fees incurred by your insured regarding this
action in the amount of $53,153.76. If you wish my office to continue to represent RAD in this
litigation instead of panel counsel, deposit $10,000.00 and provide my office with your particulars
for invoicing (we use UTBMS coding and can issue LEDES 98B invoices).
Please provide your claim representative's information and any claim numbers regarding this claim
or my client’s asserted bad faith claims.
Should you have any questions or comments, please do not hesitate to contact the undersigned.
Very truly yours,
Kerry P. Zeiler
KPZ/nbm
EXHIBIT 4
AmTrust North America
Post Office Box 89404 • Cleveland, OH 44101
(p) 888.239.3909 • (f) 678.258.8395
Email: amtrustclaims@amtrustgroup.com
December 21, 2022
Sent Via E-mail only
anthonymano@radcommunicationsinc.com
ronsingh@radcommunicationsinc.com
RAD Communications, Inc.
Attn: Anthony Mano and Ron Singh
150 S. Ann Street
Monroe, WA 98272
Re: Gercinta, LLC ; and Cinta Aveda Institute, Inc v Mastec North America,
Inc. ; and RAD Communications, Inc.
Superior Court, San Francisco County – Case No. CGC-21-591432
Our Named Insured: RAD Communications, Inc.
Underwriting Company: Security National Insurance Company
Policy Number(s): XXXXX4421-00 (eff. 07/11/2018 to 07/11/2019)
Our Claim Number: 3118409-1
Loss Location: Cinta Aveda Institute – 305 Kearny Street, San
Francisco CA 94108
Dear Mr. Mano and Mr. Singh:
AmTrust North America is the claims administrator for Security National Insurance
Company with respect to the above-referenced policies issued to RAD Communications,
Inc. (hereinafter, RADCI)
Please be advised that Security National Insurance Company will provide a defense to
RADCI, pursuant to a reservation of rights as more fully set forth in this letter. We have
retained Colette Stone of Stone & Associates, APC to represent RADCI. Colette Stone
may be reached at cstone@stonelawoffice.com and (925) 938-1555. Please cooperate
fully with your attorney in furtherance of your defense pursuant to the terms of the policies.
Please note that Security National Insurance Company is not obligated to fund the cost
of affirmative claims against any third party, nor is it the obligation of assigned counsel to
do so. If any insured has claims against a third party, it should consult counsel of its own
selection at its own expense regarding those claims.
RAD Communications, Inc. Page 2
December 21, 2022
BACKGROUND
Security National Insurance Company recounts the relevant facts, based on information
received to date, and based on the allegations made in the claim. In so doing, we do not
intend to suggest that the allegations are true but do so only as they are relevant to
Security National Insurance Company’s coverage determination.
Cinta Aveda Institute is the building that experienced water intrusion into their basement
causing alleged damages. The alleged source of the damage was the trench created by
RADCI in their reported scope of digging a trench under a subcontract with MasTec North
America, Inc., following MasTec’s purported contract with Verizon for placement of fiber
optic lines. The general master contract between RADCI and MasTec is dated April 17,
2018, wherein RADCI is noted as being engaged in the business of Underground
Construction.
RADCI provided a Purchase Order dated 11-14-2018 / PO#121232654, directed to
MasTec and titled Job# Belden Place NFID#1706ALZA.021 - 80 feet – C-100 Trench
$14,629.60 / 1 – C-100 Handhole Large $550.00 - Total: $15,179.60. The map shared
for the project shows the subject trench beginning on Bush Street and ending in St.
George Alley, which presumably terminates in the area adjacent to 305 Kearny, the Cinta
Aveda Institute.
The trench work allegedly allowed water to enter into the basement of the Cinta Aveda
Institute causing damages to the basement classroom area.
THE POLICY
In this letter, we may paraphrase the policy language or quote only part of a
provision/endorsement. We do so to make the letter clearer and easier to read. We do
not intend to misquote, misstate, or misrepresent any part of the policies. If there is a
discrepancy between this letter and the policy language, the policy language governs. In
addressing only certain terms, conditions, and exclusions, Security National Insurance
Company neither waives nor intends to waive its right to assert any other terms,
conditions, and exclusions that might apply to limit or defeat coverage.
The policy provides General Liability coverage subject to form CG 00 01 12 07. The
applicable limits are $1,000,000 per Occurrence with a General Aggregate Limit of
$2,000,000 and a Products/Completed Operations Aggregate Limit of $2,000,000.
According to the policies’ declarations, RADCI’s business description is “Satellite Dish
Installation, Service or Repair”.
RAD Communications, Inc. Page 3
December 21, 2022
Commercial General Liability Form CG 00 01 12 07, states in relevant part:
SECTION I - COVERAGES
COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay
as damages because of “bodily injury” or “property damage” to which this
insurance applies. We will have the right and duty to defend the insured
against any “suit” seeking those damages. However, we will have no duty
to defend the insured against any “suit” seeking damages for “bodily injury”
or “property damage” to which this insurance does not apply.
* * *
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence”
that takes place in the “coverage territory”;
(2) The “bodily injury” or “property damage” occurs during the policy period;
(3) Prior to the policy period, no insured listed under Paragraph 1. of Section
II – Who Is An Insured and no “employee” authorized by you to give or
receive notice of an “occurrence” or claim, knew that the “bodily injury”
or “property damage” had occurred, in whole or in part. If such a listed
insured or authorized “employee” knew, prior to the policy period, that
the “bodily injury” or “property damage” occurred, then any continuation,
change or resumption of such “bodily injury” or “property damage” during
or after the policy period will be deemed to have been known prior to the
policy period.
c. “Bodily Injury” or “property damage” which occurs during the policy period
and was not, prior to the policy period, known to have occurred by any
insured listed under Paragraph 1. of Section II – Who Is An Insured or any
“employee” authorized by you to give or receive notice of an “occurrence”
or claim, includes any continuation, change or resumption of that “bodily
injury” or “property damage” after the end of the policy period.
d. “Bodily injury” or “property damage” will be deemed to have been known to
have occurred at the earliest time when any insured listed under Paragraph
1. of Section II – Who Is An Insured or any “employee” authorized by you to
give or receive notice of an “occurrence” or claim:
RAD Communications, Inc. Page 4
December 21, 2022
(1) Reports all, or any part, of the “bodily injury” or “property damage” to us
or any other insurer;
(2) Receives a written or verbal demand or claim for damages because of
the “bodily injury” or “property damage”; or
(3) Becomes aware by any other means that “bodily injury” or “property
damage” has occurred or has begun to occur.
* * *
Additionally, policy form CG 00 01 12 07, contains paragraph 2. Exclusions, which states
in part:
2. Exclusions
This insurance does not apply to:
* * *
b. Contractual Liability
"Bodily injury" or "property damage" for which the insured is obligated to pay
damages by reason of the assumption of liability in a contract or agreement.
This exclusion does not apply to liability for damages:
(1) That the insured would have in the absence of the contract or
agreement; or
(2) Assumed in a contract or agreement that is an "insured contract",
provided the "bodily injury" or "property damage" occurs subsequent to
the execution of the contract or agreement. Solely for the purposes of
liability assumed in an "insured contract", reasonable attorney fees and
necessary litigation expenses incurred by or for a party other than an
insured are deemed to be damages because of "bodily injury" or
"property damage", provided:
(a) Liability to such party for, or for the cost of, that party's defense has
also been assumed in the same "insured contract"; and
(b) Such attorney fees and litigation expenses are for defense of that
party against a civil or alternative dispute resolution proceeding in
which damages to which this insurance applies are alleged.
* * *
j. Damage To Property
RAD Communications, Inc.
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TISGAR HAROUN VS HOCB RETAIL LLC, ET AL.
Jul 30, 2024 |
24STCV00648
Case Number:
24STCV00648
Hearing Date:
July 30, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
TISGAR HAROUN,
Plaintiff,
vs.
HOCB RETAIL LLC, HOUSE OF
CB USA, LLC, SIRENS DESIGN
LLC, EGYPTSIA NEVERS, and
DOES 1 through 100, inclusive,
Defendants.
CASE NO.:
24STCV00648
[TENTATIVE] ORDER RE:
MOTION TO COMPEL DEFENDANTS RESPONSES TO FORM INTERROGATORIES GENERAL AND EMPLOYMENT LAW (SET ONE), SPECIAL INTERROGATORIES (SET ONE), AND REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE); REQUEST FOR $1,050.00 IN MONETARY SANCTIONS
Date: July 30, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff Tisgar Haroun (Plaintiff)
RESPONDING PARTY: Defendants HOCB Retail LLC, House of CB USA, LLC, and Sirens Design LLC (collectively, Defendants)
The Court has considered the moving papers and the declaration filed in response to the motion.
BACKGROUND
This case arises from an employment dispute.
On January 10, 2024, Plaintiff filed a complaint asserting various causes of action, including wrongful termination, discrimination and retaliation.
On May 21, 2024, Plaintiff filed a single motion (the Motion) to compel Defendants responses to the following four (4) sets of discovery served on Defendants: (1) Form Interrogatories General, Set One; (2) Form Interrogatories Employment Law, Set One; (3) Special Interrogatories, Set One; and (4) Request for Production of Documents, Set One (collectively Discovery Requests).
Plaintiff also seeks an award of monetary sanction in the amount of $1,050.
On July 8, 2024, Defendants counsel, Calvin House, submitted a declaration in response to Plaintiffs Motion (House Decl.).
DISCUSSION
Legal Standard
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here,
Plaintiff served Defendants with the Discovery Requests on February 19, 2024.
(Declaration of Levon Derkalousdian, Esq. (Derkalousdian Decl.), ¶ 2.)
As of May 17, 2024, Defendants have not provided responses to any of the Discovery Requests.
(Derkalousdian Decl., ¶ 8.)
Plaintiff now moves for an order compelling Defendants to serve responses to the Discovery Requests.
Defendants counsel submitted a declaration on July 8, 2024, stating that Defendant served Plaintiff with verified responses to the Discovery Requests on May 31, 2024, without objections, and attached said discovery responses.
(House Decl., ¶ 2, Exhs. 1-12.)
Accordingly, since verified responses, without objections, have now been served, the Motion is MOOT.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2030.290, subd. (c).)
[T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2031.300, subd. (c).)
Here, the declaration submitted by Defendants counsel offers no justification for the delayed responses.
(House Decl.)
Thus, the Court finds that monetary sanctions are warranted.
Plaintiff requests monetary sanctions in the total amount of $1,050, representing two hours spent in preparing the Motion plus an anticipated one hour for preparing a reply and arguing the Motion, based on an hourly rate of $350.
(Derkalousdian Decl., ¶ 9.)
The Court finds that because no reply was prepared and the Motion itself is moot, although it was filed before responses were served, reasonable sanctions are in the amount of $700 for the two hours required to prepare the Motion.
Accordingly, Plaintiffs request for sanctions is granted in part, in the reasonable amount of $700.
Defendants and their counsel are jointly and severally liable for this amount, which is payable to Plaintiff within twenty days of the date of this order.
Improperly Combined Motions
The Court notes, however, that Plaintiff has impermissibly combined motions seeking relief for each discovery device.
A motion must be brought separately for each discovery method at issue.
(Govt. Code, § 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing]; The Rutter Group California Practice Guide: Civil Procedure Before Trial, Ch. 8F-7 [8:1136] [Motions to compel compliance with separate discovery requests ordinarily should be filed separately.].)
Plaintiff should have filed four separate motions, each with its own filing fee; instead, Plaintiff filed only one motion and paid one filing fee.
Therefore, Plaintiff is ordered to pay three additional $60 filing fees for a total of $180 as a condition to the granting of this Motion.
The Motion is MOOT; however, monetary sanctions are awarded in favor of Plaintiff in the total amount of $750, to be paid by Defendants and their counsel within 20 days of the date of this Order.
Plaintiff is ordered to pay $180 in previously unpaid filing fees to the Court within twenty days of the date of this order.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 30th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
ELIZABETH SHUAI WONG VS FLIPFIT, ET AL.
Aug 09, 2024 |
23STCV30186
Case Number:
23STCV30186
Hearing Date:
August 9, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ELIZABETH SHUAI WONG
,
Plaintiff,
vs.
FLIPFIT, f.k.a. HUMANS, INC., a Delaware
corporation, NOORULDEEN ALAARIF,
a.k.a. NOOR AGHA, an individual, and
DOES 1 to 100, inclusive
,
Defendants.
CASE NO.:
23STCV30186
[TENTATIVE] ORDER RE:
MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIESS, SET ONE
Date: August 9, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff
Elizabeth Shuai Wong
(Plaintiff)
RESPONDING PARTY: Defendant
Flipfit, fka Humans, Inc. (Defendant)
The Court has considered the moving, opposition and reply papers.
BACKGROUND
This is a representative action filed by Plaintiff on December 11, 2023, seeking recovery of civil penalties under the Private Attorneys General Act of 2004, California Labor Code §2698,
et seq
. (PAGA), for alleged Labor Code violations of:
failure to pay minimum wage, failure to pay overtime wages, failure to provide all required meal periods, failure to authorize or permit all required rest periods, failure to pay all earned wages each pay period, failure to provide accurate wage statements, failure to pay vested vacation wages, failure to reimburse necessary business expenditures, failure to pay all wages due upon separation of employment, failure to maintain an effective Injury and Illness Prevention Program and retaliation for use of Covid-19 supplemental sick pay.
On April 22, 2024, Plaintiff filed a Motion to Compel Defendants Responses to Plaintiffs Requests for Production, Set One (the RFPs Motion), and a Motion to Compel Defendants Responses to Plaintiffs Special Interrogatories, Set One (the SIs Motion) (collectively, the Motions).
Defendant filed a consolidated opposition to the Motions on July 9, 2024, and Plaintiff filed a reply on July 15, 2024.
DISCUSSION
SIs Motion
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
Here, Plaintiff served Defendant with Special Interrogatories, Set One (SIs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of SIs Motion, ¶ 3.)
Defendant had not served responses to the SIs as of the date of filing of the SIs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Declaration of Matthew Theriault (Theriault Decl.), ¶ 10.)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the SIs on June 7, 2024.
(Supplemental Declaration of Leonard H. Sansanowicz in Support of Plaintiffs Reply (Sansanowicz Supp. Decl.), ¶ 22.)
Accordingly, since responses to the SIs, without objections, have now been served, the SIs Motion is MOOT.
To the extent that Plaintiff contends that the responses are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
RFPs Motion
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here, Plaintiff served Defendant with Requests for Production of Documents, Set One (RFPs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of RFPs Motion, ¶ 3.)
Defendant had not served responses to the RFPs as of the date of filing of the RFPs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Theriault Decl., ¶ 10.)
Additionally, on July 9, 2024, Defendant produced documents.
(
Id.
)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the RFPs on June 7, 2024.
(Sansanowicz Supp. Decl., ¶ 22.)
Accordingly, since responses to the RFPs, without objections, have now been served, and documents have been produced, the RFPs Motion is MOOT.
To the extent that Plaintiff contends that the responses and documents produced are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2030.290, subd. (c).)
[T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2031.300, subd. (c).)
In this case, Defendant asserts that the delayed responses were caused by unexpected medical issues experienced by the previous attorney handling the case. The Court also acknowledges that there have been multiple changes in the counsel representing Defendant. Furthermore, Plaintiff agreed to an extension for Defendant to provide responses by June 7, 2024, and Defendant complied with this deadline.
(Sansanowicz Supp. Decl., ¶¶ 17-22;
Theriault Decl., ¶¶ 8-10.)
Thus, the Court finds that, under the circumstances, there is substantial justification for the delayed responses and that monetary sanctions are not warranted.
Accordingly, no sanctions are imposed.
RULING
The Motions are DENIED as moot.
The requests for monetary sanctions are also DENIED.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 9
th
day of August 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
SIRANUSH AKLYAN, ET AL. VS STATE OF CALIFORNIA, ET AL.
Jul 26, 2024 |
23BBCV01986
Case Number:
23BBCV01986
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
siranush aklyan
,
et al.
,
Plaintiffs,
v.
state of california,
et al.
,
Defendants.
Case No.:
23BBCV01986
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion to strike
BACKGROUND
A.
Allegations
Plaintiffs Siranush Aklyan, Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan (Plaintiffs) allege that on February 25, 2023 at approximately 1:30 a.m., Siranush Aklyan was operating her vehicle in the number 1 of 5 lanes on the I-5 northbound freeway.
Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan were passengers int the vehicle.
Plaintiffs allege that they became trapped underwater following a heavy rainfall on the Golden State I-5 freeway.
Plaintiffs allege that a vehicle
maneuvering the number two (2) lane initiated the passage adjacent to their vehicle, precipitating the generation of a wave, thereby inducing a hydrodynamic disturbance. This perturbation induced an unintended rotational motion of the Plaintiffs' vehicle in a counter-directional manner, leading to its eventual submersion. In a bid to evacuate the vehicle, the Plaintiffs made several unsuccessful attempts to unlatch the doors due to the exerted hydrostatic pressure, rendering them inoperable. Subsequently, the Plaintiffs successfully extricated themselves from the vehicle by manipulating one of the windows and effecting their exit through said window.
(Compl., ¶7.)
Plaintiffs allege that the roadway was dangerous for drivers as the surface had insufficient traction and friction, had improper grooving and treatment of the pavement, used improper materials in the design/construction/maintenance/repair of the roadway, etc.
Plaintiffs allege that Defendants State of California and Caltrans District 7 owned, occupied, leased, used, regulated, controlled, managed, maintained, operated, supervised, repaired, and possessed the portion of the freeway at issue.
The complaint, filed August 25, 2023, alleges causes of action for: (1) statutory liability/dangerous condition of public property; and (2) negligence.
B.
Motion on Calendar
On June 14, 2024, Defendant the People of the State of California, acting by and through the Department of Transportation (Defendant) (erroneously named as State of California and Caltrans District 7) filed a motion to strike portions of the complaint.
On July 15, 2024, Plaintiffs filed an opposition brief.
On July 24, 2024, Defendant filed a reply brief.
DISCUSSION
Defendant moves to strike portions of the complaint at paragraph 24 (page 9, line 5).
The specific language includes references to Government Code, §§ 815.2(a), 820(a), and 840.2.
They argue that they do not dispute that Plaintiffs properly plead a cause of action for dangerous condition of public property, but that the allegations for vicarious liability and negligence by referencing the aforementioned sections is improper.
(Reply at p.5.)
First, Defendant argues that sections 815.2(a) and 820(a) regarding vicarious liability are improper.
Government Code, § 815.2(a) states:
A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
Government Code, § 820(a) states:
Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
Defendant argues that Plaintiffs have not specifically identified any employee of Defendant for which Defendant could be vicariously liable and that, even if Plaintiffs were able to identify employees, its employees are immune such that Defendant cannot be vicariously liable.
Defendant cites to
Yee v. Superior Court
(2019) 31 Cal.App.5th 26, 40:
A public entity cannot be held vicariously liable for actions of its employees that are actually acts of the entity itself, albeit performed by necessity by employees or agents. Vicarious liability depends on the employee being independently liable for the act, the entity becoming liable because the employee's act was taken within the scope of his or her employment.
(
Yee
, supra, 31 Cal.App.5th at 40.)
Defendant argues that a claim for dangerous condition of public property can only lie pursuant to Government Code, §§ 830 to 835.4.
Second,
Defendant argues that section 840.2 for direct employee liability does not govern dangerous conditions of public property actions.
Government Code, § 840.2 states:
An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
(a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or
(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
(Govt Code, § 840.2.)
Again, Defendant argues that Plaintiffs have not identified any specific individual against whom a section 840.2 claim could be brought.
Plaintiffs argue that they are not required to plead the name of the specific individuals prior to undergoing discovery.
Plaintiffs rely on
C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 872, wherein
the California Supreme Court stated:
The complaint, it is true, does not identify by name or position the District's employees, administrators and/or agents who allegedly failed to properly hire, train and supervise Hubbell. But the District cites no statute or decision requiring a plaintiff to specify
at the pleading stage
which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. [Citation.]
(
C.A.
, supra, 53 Cal.4th at 872; see
Perez v. City of Huntington Park
(1992) 7 Cal.App.4th 817, 820821 [
The plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.].)
Although the complaint does not name specific individuals who were employed by Defendant, the complaint alleges that Defendant and Does 1-100 knew of the dangerous and defective conditions of the roadway, knew that the plan or design of the roadway had become dangerous due to the change in the conditions of the roadway, failed to warn drivers or take other actions, etc.
(Compl., ¶¶14-19.)
Plaintiffs allege that the dangerous conditions and acts/omissions of Defendant and Does 1-100 and their management, administrators, designers, planners, engineers, maintenance personnel, inspectors, and/or other employees, staff, agents, or contractors were done within the course and scope of their duties.
(
Id.
, ¶21.)
At this time, the Court will not preemptively strike references to section 815.2(a) and 820 for vicarious liability as there may be a basis for independent liability against Defendants employee(s) and their actions that were undertaken during the scope of their employment.
The Court finds that the allegations are sufficiently particular for the cause of action to go forward.
Similarly, section 840.2 is for direct liability against an employee of a public entity for a dangerous condition of public property.
Whether Plaintiff is able to discover the names of such employees later, amend the Doe designations, and prove this will have to be determined beyond the pleading stage.
As currently alleged, Plaintiffs have alleged sufficient facts against Defendant and specifically alleged the code sections that are at issue in this action; the identity of the particular individuals employed by Defendant is better left to be determined during the discovery process.
Finally, Defendant argues that public employees are immune from discretionary acts under Government Code, § 820.2, such that it cannot be vicariously liable for the actions or inactions of its employees.
Section 820.2 states:
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
While such an exception may exist, at this time, the Court will not prematurely determine if the exception applies to the facts of this case based on the pleadings alone.
Again, this is better addressed upon the consideration of evidence at the motion for summary judgment or trial stage.
The motion to strike is overruled.
CONCLUSION AND ORDER
Defendant the People of the State of California, acting by and through the Department of Transportations motion to strike is overruled.
Defendant is ordered to answer.
Defendant shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
DAVID ODAY, ET AL. VS 118 WADSWORTH AVENUE HOMEOWNERS ASSOCIATION, ET AL.
Jul 29, 2024 |
23STCV24766
Case Number:
23STCV24766
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
NOT SET
CASE:
David Oday, et al. v. 118 Wadsworth Avenue Homeowners Association, et al.
CASE NO.:
23STCV24766
MOTION TO DISSOLVE PRELIMINARY INJUNCTION
MOVING PARTY
: Defendant 118 Wadsworth Avenue Homeowners Association
RESPONDING PARTY(S)
: Plaintiffs David Oday and Lakota Patrick Ford
CASE HISTORY
:
·
10/11/23: Complaint filed.
·
01/10/24: First Amended Complaint filed.
·
03/01/24: Cross-Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a breach of contract and habitability defect action. Plaintiffs allege that Defendants refused to replace the roof of Plaintiffs condominium, causing extensive water damage and mold throughout the unit. Plaintiffs allege that Defendants improperly issued special assessments in violation of the operative covenants, conditions, and restrictions on the property, and retaliated against Plaintiffs for raising these issues.
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
TENTATIVE RULING:
Defendants Motion to Dissolve Preliminary Injunction is DENIED, as Plaintiff David Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
DISCUSSION:
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
Legal Standard
Code of Civil Procedure section 533 states:
In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.
(Code Civ. Proc. § 533.) Modification of a preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case. (
Union Interchange, Inc. v. Savage
(1959) 52 Cal.2d 601, 606.) The party seeking modification has the burden of proving that the request is justified. (See
Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1504.)
Analysis
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 on the grounds that Plaintiffs failed to post the undertaking of $70,416.09 ordered by the Court. (See February 22, 2024 Minute Order.)
Plaintiffs, in opposition, state that payment in the amount specified by the Courts order was deposited with the Court on June 26, 2024, with notice given to Defendant the next day. (Declaration of Scott J. Kalter ISO Opp. Exhs. 1-2.) In reply, Defendant contends that Plaintiffs deposit of the funds to the Court is effective as a posting of a bond under Code of Civil Procedure section 995.710, but only if the deposit is accompanied by an agreement executed by the principal authorizing the officer to collect, sell, or otherwise apply the deposit to enforce the liability of the principal on the deposit. (Code Civ. Proc. § 995.710(c).) Defendant contends that Plaintiffs have not executed such an agreement, and, therefore, that the injunction should be dissolved.
The Court concurs with Defendant that an authorization to dispose of the funds to satisfy liability is required for Plaintiffs deposit to be considered posting of the bond under section 995.710. In response to the Courts prior tentative ruling, Plaintiff David Patrick Oday has submitted an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c). Accordingly, the Court will deny the motion to dissolve the preliminary injunction.
CONCLUSION
:
Accordingly, Defendants Motion to Dissolve Preliminary Injunction is DENIED given that Plaintiff David Patrick Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
Moving party to give notice.
IT IS SO ORDERED.
Dated: July 29, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
KPG HEALTHCARE LLC, AN ARIZONA LIMITED LIABILITY COMPANY VS SAVANT CARE INC., A CALIFORNIA NONPROFIT CORPORATION, ET AL.
Jul 30, 2024 |
23STCV29725
Case Number:
23STCV29725
Hearing Date:
July 30, 2024
Dept:
48
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
KPG HEALTHCARE LLC,
Plaintiff,
vs.
SAVANT CARE INC., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 23STCV29725
[TENTATIVE] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES; GRANTING PLAINTIFFS MOTION TO DEEM RFAs ADMITTED
Dept. 48
8:30 a.m.
July 30, 2024
On
December 5, 2023, Plaintiff KPG Healthcare LLC filed this action against Defendant Mindful Values and others.
On March 14, 2024, Plaintiff served Form Interrogatories, Set One and Requests for Admission on Defendant.
After an extension of time, the deadline for Defendant to respond was May 31, 2024, but to date, no responses have been received.
On June 25 and 26, 2024, Plaintiff filed motions to compel responses to the Form Interrogatories and to deem the RFAs admitted.
Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses.
(Code Civ. Proc., §§ 2030.290, 2031.300;
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 403.)
A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product.
(Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).)
When a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.
(Code Civ. Proc., § 2033.280, subd. (b).)
The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the partys failure to respond was the result of mistake, inadvertence, or excusable neglect.
(Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).)
The court shall grant a motion to deem admitted requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.
(Code Civ. Proc., § 2033.280, subd. (c).)
Defendant filed no opposition to these motions and did not serve timely responses.
It does not appear that Defendant served substantially compliant responses prior to the hearing.
Accordingly, the motions are GRANTED.
Defendant is ordered to provide verified responses, without objections, to Form Interrogatories, Set One within 30 days.
The Requests for Admission served on March 14, 2024 are deemed admitted.
The request for sanctions is granted in part.
Defendants counsel is ordered to pay total sanctions of $2,000.00 to Plaintiff within 30 days.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.
If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.
Dated this 30th day of July 2024
Hon. Thomas D. Long
Judge of the Superior Court
Ruling
ARACELI ACOSTA VS JEFFREY H. SCHWARTZ, ET AL.
Jul 26, 2024 |
22STCV01060
Case Number:
22STCV01060
Hearing Date:
July 26, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 26, 2024
CASE NUMBER
:
22STCV01060
MOTIONS
:
Motion to Set Aside Default
MOVING PARTY:
Defendant Akikur R. Mohammad
OPPOSING PARTY:
Plaintiff Araceli Acosta
BACKGROUND
On January 11, 2022,
Plaintiff Araceli Acosta (Plaintiff) filed a wrongful death action.
On August 24, 2023, Plaintiff filed an amendment to the complaint, substituting Defendant Akikur Mohammad (Defendant) as Doe 2.
On December 5, 2023, Plaintiff filed a proof of service of the complaint on Defendant. The proof of service shows that the summons and complaint were served at 7018 Elmsbury Lane, West Hills via substitute service on September 13, 2023 to Irina Chemeleva. Copies of the summons and complaint were also mailed to the address on September 18, 2023.
On December 5, 2023, default was entered against Defendant.
On June 13, 2024, Defendant filed the instant motion to set aside the default based on Code of Civil Procedure section 473.5. Plaintiff opposes. No reply has been filed.
LEGAL STANDARD
Section 473.5
Under Code of Civil Procedure section 473.5, [w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. ¿This motion must be brought within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc. § 473.5(a).)
¿¿¿
The focus of section 473.5 is whether the defaulting party obtained actual notice in time to defend the action.¿Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action.¿ (
Anastos v. Lee
(2004) 118 Cal.App.4th 1314, 1319.)¿A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.¿(
Ibid
.; Code Civ. Proc. § 473.5(b).)¿The term actual notice means genuine knowledge of the party litigant.¿(
Rosenthal v. Garner
(1983) 142 Cal.App.3d 891, 895.)¿
The party seeking relief must serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (
Code Civ. Proc. § 473.5(b).)
EVIDENTIARY OBJECTIONS
The Court overrules Plaintiffs objection number 1 and declines to rule on objection 2 as it has no effect on the ruling herein.
DISCUSSION
As an initial matter, the record does not show that Plaintiff served written notice of the entry of default on Defendant. Though the opposition argues that Plaintiff sent Defendant notice of the Request for Default on November 29, 2024 and December 5, 2024, she does not show that she served notice that the default was entered. Therefore, the deadline for bringing this motion under section 473.5 is two years after the default was entered: December 5, 2025. Since Defendant filed this motion on June 13, 2024, it is timely.
Secondly, to the extent Defendant argues that Plaintiff did not use reasonable diligence to attempt personal service, the Court notes that Defendant provides authority that two or three attempts are sufficient. (Motion, 8.) Here, the proof of service shows that the process server made three attempts on consecutive days and at different times of the day before substitute service was made. Therefore, substitute service was sufficient.
Turning to the main issue of actual notice, Defendant offers the declaration of Irina Shmeleva, his wife, who received the papers during the substitute service. She declares, under penalty of perjury, that from August 9, 2022 to May 8, 2023, Defendant was incarcerated for financial crimes. (Shmeleva Decl. ¶ 3.) She states that she became angry with him for the crimes and resulting financial hardship on their family. When he returned home, she would not speak to Defendant and did not see him even though they were living in the same house. She declares the following: I was handed legal papers for my husband on September 13, 2023 was still so upset at my husband that I put the papers somewhere and promptly forgot about them. I did not inform my husband that I received documents for him. One of our daughters resides with us and she was the person in our family that picked up the mail. She never told me that any mail arrived for my husband. (
Id.
¶ 5-6.)
Defendants declaration also confirms that his relationship with his wife was fractured following his release from prison. (Mohammad Decl. ¶ 3.) He further declares:
In April 2024 I received a copy of a document from plaintiff's attorney applying for a default judgment against me. I was shocked and asked my wife if she knew anything about it and at first she said she knew nothing about it. A little later, she brought me the documents and told me that she was sorry but that she put them down and then forgot about them since we were still having relationship problems at that time. I knew nothing about the attempts at service since I was not home when the attempts were made and my wife did not tell me that someone was looking for me. I immediately contacted my insurance carrier but learned that the claim was denied as it was not presented during the period of time that I was insured.
(Mohammad Decl. ¶¶ 4-6.)
In opposition, Plaintiff argues that Defendant has not set forth enough evidence showing he lacked actual notice of the lawsuit. However, based on the declarations, Defendant has shown that his lack of actual notice was not caused by inexcusable neglect or avoidance of service. Plaintiff provides no evidence to the contrary. As a result, the motion to set aside the default under section 473.5 is granted.
[1]
CONCLUSION AND ORDER
Therefore, the Court GRANTS Defendants Motion to
Set Aside the Default entered on December 5, 2023.
Defendant shall file and serve his proposed answer within 10 days.
The matter is set for a Final Status Conference on March 3, 2025 in Department 32 of the Spring Street Courthouse.
Trial is set for March 17, 2025 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.
Defendant to provide notice and file a proof of service of such.
[1]
Though Defendant also mentions arguments surrounding Code of Civil Procedure section 364, a settlement in this case, and the statute of limitations, these appear to demonstrate that Defendant has a meritorious defense and are not argued to be relevant for the inquiry to set aside the default. As a result, the Court will not address these arguments at this time.
Ruling
THE MANIJEH SHAMS TRUST, ET AL. VS FARIBA JAVAHERPOUR
Jul 26, 2024 |
22BBCV00226
Case Number:
22BBCV00226
Hearing Date:
July 26, 2024
Dept:
A LOS ANGELES SUPERIOR COURT
NORTH CENTRAL DISTRICT - BURBANK
DEPARTMENT A
TENTATIVE RULING
JANUARY 25, 2024
MOTION TO ENFORCE SETTLEMENT AGREEMENT
Los Angeles Superior Court Case # 22BBCV00226
MP:
THE MANIJUE SHAMS TRUST AND MANIJEH SHAMS (Plaintiff)
RP:
FARIBA JAVAHEROUR, ET AL (Defendant)
All parties are requested to appear either in person or via LA Court Connect to address the tentative ruling.
Brief Summary of Requested Relief
The Court has read and considered Plaintiffs Motion to Enforce Settlement, Defendants opposition, as well as Defendants Further Opposition to the Motion.
The parties entered into a settlement as set forth in Plaintiffs moving papers, which included a CCP §664.6 provision.
Defendant has declined to sign the written settlement agreement until Plaintiff amends her trust to reflect that the settlement of $60,000 will inure to the benefit of the Plaintiffs grandchildren, specifically the children of Plaintiffs deceased son, Massoud Bahmanyar.
The parties appear to be at an impasse.
Ruling on Motion to Enforce Settlement
Pursuant to CCP §664.6, a Court has continuing jurisdiction to enforce a settlement agreement.
As such, the Court exercises its authority under CCP §664.6 and orders the following be completed within the next 30 days:
1.
Plaintiff Manijeh Shams is to create a new irrevocable trust: The Manijeh Shams Irrevocable Grandchild Trust in which she is the primary beneficiary, and the children of Massoud Bahmanyar are the contingent beneficiaries.
Manijeh Shams shall be the initial trustee, with a successor trustee to be named by Ms. Shams in the trust.
2.
The terms of the trust will include that the $60,000 settlement, as well as any earnings, may be used for the direct support of the settlor, and upon settlors death will inure to the benefit of Massoud Bahmanyars children in equal parts
per stirpes
. In the event that any grandchild predeceases the settlor, that grandchilds share shall inure to the grandchilds children
per stirpes.
In the event that a deceased grandchild has no children, the share shall be divided equally among the remaining living grandchildren.
3.
Defendant Fariba Javaherpour shall deposit the total sum of $60,000 into the newly established trust within ten days of being informed that the new irrevocable trust has been established and a bank account in the name of the new trust is set up.
4.
The Manijeh Shams Irrevocable Grandchild Trust shall be subject to Part 4, Chapter 1 of the California Probate Code, beginning at §16060 et seq., including but not limited, to §§16062 and 16063.
Upon request from any contingent beneficiary, the contingent beneficiaries shall have a right directly, or through their representative if minors, to have an accounting no more than annually.
The accounting may be informal, and the cost of the accounting shall be incurred by the trust.
Any contingent beneficiary has the right to petition the court for a formal accounting if there is a prima facie basis to believe that the informal accounting does not properly reflect the trust distributions and expenses.
5.
The individual trustee shall not be entitled to compensation for administration of the trust, nor shall any bond be required of any individual trustee.
A professional or commercial trustee shall be entitled to compensation as permitted by law.
Manijeh Shams may propose specific language to the Court if necessary, with objections and alternative language being proposed by Defendant Fariba Javaherpour.
The Court sets a Status Conference Re: Settlement Agreement compliance for August 8, 2024 at 10:00 AM.
ORDER
The Plaintiffs Motion to Enforce the Settlement Agreement c
ame on for hearing on July 25, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE MOTION TO ENFORCE THE SETTLEMENT AGREEMENT IS GRANTED.
PLAINTIFF TO CREATE NEW IRREVOCABLE TRUST CONSISTENT WITH THE TERMS OF THE SETTLEMENT AGREEMENT MEMORIALIZED IN THE COURTS PRIOR MINUTE ORDER.
NEW IRREVOCABLE TRUST SHALL CONTAIN THE TERMS SET FORTH IN THIS RULING.
DEFENDANT IS TO FUND THE TRUST WITHIN 10 DAYS OF BEING NOTIFIED OF THE NEW TRUSTS CREATION AND BEING PROVIDED BANKING INFORMATION IN THE NAME OF THE NEW TRUST.
STATUS CONFERENCE RE: SETTLEMENT AGREEMENT COMPLIANCE IS AUGUST 8, 2024 AT 10:00 AM.
UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: July 26, 2024
_______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
Ruling
HAMID REZA MIRSHOJAE, ET AL. VS 5975-5999 TOPANGA CANYON BLVD LLC, ET AL.
Jul 26, 2024 |
21STCV37556
Case Number:
21STCV37556
Hearing Date:
July 26, 2024
Dept:
F43 Dept. F43
Date: 7-26-24
Case #21STCV37556,
Hamid Reza Mirshojae, et al. vs. 5975-5999 Topanga Canyon Blvd LLC, et al.
Trial Date: N/A
MOTION FOR ATTORNEY FEES
MOVING PARTY: Plaintiffs Hamid Reza Mirshojae and Woodland Hills Medical Clinic II, Inc.
RESPONDING PARTY: Defendants 5975-5999 Topanga Canyon Blvd, LLC and Ahang Mirshojae
RELIEF REQUESTED
Plaintiffs are requesting attorney fees in the amount of $
619,675
, plus $17,036.01 in costs, from Defendants.
RULING
: Motion for attorney fees is granted at a reduced amount. No costs will be awarded at this time.
SUMMARY OF ACTION
Plaintiff Hamid Reza Mirshojae (Hamid) and Defendant Ahang Zarin Mirshojae (Ahang) were formerly married and were engaged in extensive litigation against each other prior to 2017. The assets in dispute were in excess of $20 million. At mediation, Hamid and Ahang entered a complex settlement agreement. Immediately after, Hamid alleges that Ahang breached the settlement agreement, and he was forced to incur attorney fees to enforce various terms of the agreement. Eventually, Hamid filed the current suit to enforce the settlement agreement on October 12, 2021.
Ahang accused Hamid and his counsel of inducing her to sign the settlement agreement and sued him for $7 million in damages. This Court eventually struck Ahangs complaint based on Plaintiffs anti-SLAPP motion and determined that Ahang was a vexatious litigant. After this ruling, Ahang attempted to disqualify Hamids lead counsel, though that motion was rejected. Hamid alleges that he has incurred significant legal fees over the course of this litigation.
Finally, after two years of litigation, the parties settled via a 998 Offer on November 17, 2023. The 998 Offer required Defendants to pay Plaintiffs $270,000 and reasonable fees and costs as determined by the Court. Plaintiffs are requesting attorney fees pursuant to the part of the 998 Offer that allows for reasonable fees to be paid.
Plaintiffs are requesting $619,675 in attorney fees from Defendants. Plaintiffs argue in their motion that the attorney fees and hourly rates are reasonable. Plaintiffs evidence in support of their request for attorney fees included a declaration from their attorney, Christopher Beatty, and billing statements (with some redactions) that show which attorney worked on a task, what the task was, and how much time was spent on the task. (Beatty Decl., Ex. H.) The Beatty Declaration also includes a table which shows the hourly rates of the attorneys who worked on the case and their hourly rates at different times. (Beatty Decl., ¶ 35.)
Christopher Beattys hourly rates were $950 (for 2.5 hours in 2021), $975 (for 19.2 hours in 2022), and $1,300 (for 1.5 hours in 2022 and 71.6 hours in 2023). Tami K. Sims hourly rate was $1,115 (for 83.4 hours in 2023). Trevor T. Garneys hourly rate was $955 (for 87.8 hours in 2023). Arron J. Paks hourly rate was $705 (for 277.3 hours in 2023). Minh-Van Dos hourly rates were $795 (for 0.5 hours in 2021) and $840 (for 76.1 hours in 2022). Benjamin Mandels hourly rate was $595 (for 89.6 hours in 2022). Finally, Scarlet Speakmores hourly rate was $350 (for 38.8 hours in 2022).
The total lodestar was calculated by multiplying each of these attorneys hourly rate by their hours worked then adding them all together. The total hours worked for the attorneys totaled 748.3. The total lodestar amount, as previously noted, is $619,675.
Plaintiffs have also requested costs in the amount $17,036.01. However, costs are awarded pursuant to California Rules of Court, Rule 3.1700. If Plaintiffs wish to request costs, Plaintiffs should file a memorandum of costs at the appropriate time.
Defendants Evidentiary Objections to the Declaration of Keith M. Maziarek:
Sustained: Entire Declaration (irrelevant), Paragraph 11
Overruled: None
Plaintiffs Evidentiary Objections to the Declaration of June D. Coleman and the Declaration of Raffi Kassabian: The individual evidentiary objections presented by Plaintiffs to these two declarations are not consecutively numbered. Typically, when written objections to evidence are filed, the written objection must be number consecutively. (See Cal. Rules of Court Rule 3.1354 (applies to written objections to evidence for summary judgment motions).) While Plaintiffs listed them by paragraph number from the declarations, this is not necessarily effective, because in some instances Plaintiffs objected to different sentences from the same paragraph and listed them separately with the same paragraph number. The Court will not rule on the individual evidentiary objections based on this procedural deficiency. Plaintiffs have objected to the entire Coleman Declaration on the basis that it is improper expert testimony because Coleman has not shown any special knowledge, skill, etc., related to billing for these types of cases pursuant to Evidence Code § 720. The Court has determined that Coleman has sufficiently demonstrated her special knowledge as a fee expert with this declaration and her recently submitted supplemental declaration. Plaintiffs objection to the entire Coleman Declaration is overruled.
On April 9, 2024, a hearing was held on Plaintiffs motion for attorney fees. That same day, the Court issued a ruling on the submitted matter requesting that the parties submit additional briefing and that Plaintiffs submit invoices that do not redact the lawyers hourly rates or the amounts billed, along with supplemental points and authorities supporting their fee requests in light of that information.
On May 24, 2024, Plaintiffs submitted their supplemental brief. In their brief, Plaintiffs argue that the Court should award standard hourly rates and that the fees sought for all tasks are reasonable. Plaintiffs submitted new billing records that still contain some redactions, but they do not redact the lawyers hourly rates or the amounts billed.
On June 25, 2024, Defendants submitted their supplemental opposition brief. Defendants argue that the Court should significantly reduce the fees requested by Plaintiffs. Defendants also argue that the Court should consider Defendants expert declaration. Defendants also acknowledge that Plaintiffs conceded that the actual hourly rates and amounts billed are not privileged.
ANALYSIS
A prevailing party is entitled to recover its attorneys fees when authorized by contract, statute, or law. (See CCP § 1033.5(a)(10); Cal. Civ. Code § 1717(a).) A successful party means a prevailing party, and [a party] may be considered prevailing parties for attorneys fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. (
Bowman v. City of Berkeley
(2005) 131 Cal.App.4th 173, 178.)
Plaintiffs are the prevailing party by virtue of the fact that the parties settled in Plaintiffs favor via the 998 Offer. Plaintiffs have requested a total of $619,675 in attorney fees.
Defendants previously opposed Plaintiffs motion on the basis that Plaintiffs agreed only to recover fees actually incurred and according to proof in the 998 Offer, and Defendants argued that Plaintiffs have not provided this proof. However, this argument was resolved with Plaintiffs supplemental brief, as Plaintiffs have now provided unredacted hourly rates and amounts billed.
Plaintiffs attorney Christopher D. Beatty acknowledges in his supplemental declaration that the actual amount charged to the client was $543,156. (Beatty Supp. Decl., ¶ 5.) Defendants argue in their supplemental opposition that this should be the baseline from which any reductions in the requested amount should be made. Defendants argue that Plaintiffs should only be able to recover fees actually incurred because that is what the 998 Offer between the parties allowed. (See
San Dieguito Pship, L.P. v. San Dieguito River Valley Regl Open Spake Park Joint Powers Auth.
(1998) 61 Cal.App.4th 910, disapproved on other grounds by
PLCM Group v. Drexler
(2000) 22 Cal.4th 1084.) The Court agrees. Plaintiffs should only recover the fees actually incurred, which in this case is, at a maximum, $543,156.
Next, Defendants contest the reasonableness of the fees incurred by Plaintiffs.
In determining the reasonableness of fees, courts look to the factors from
Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628, disapproved on other grounds by
Equilon Enters. v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68 n.5. The factors from
Wollersheim
are (1) the amount of money involved in the litigation; (2) the nature of the litigation and its difficulty and the intricacies and importance of the litigation; (3) the skill required and employed in handling the litigation, the necessity for skilled legal training and ability in trying the case, and counsels education and experience in the particular type of work involved; (4) the attention given to the case; (5) the success of the attorneys efforts; and (6) the time consumed by the litigation. (
Id.
)
Plaintiffs argued in the initial motion that they met all of these factors. First, Plaintiffs argue that large amounts of money were involved in this litigation because of Ahangs cross-complaint for $7 million and the fact that the original settlement agreement divided the parties assets that were valued in excess of $20 million. Next, for the second factor, Plaintiffs argue that the nature of this case was an emotional case between two ex-spouses and business partners with significant assets at issue, and Ahang had been determined by the Court to have engaged in fraud. For the third factor, Plaintiffs argued that this was a complex case that required an experienced legal team to handle it, and Beattys team were the logical ones to handle it because Beatty had handled the cases that led to the settlement agreement. For the fourth factor, Plaintiffs argued that their counsel had to devote significant attention to this case. For the fifth factor, Plaintiffs argued that their counsel had success throughout the case in prevailing on the anti-SLAPP motion and defeating the attempt to disqualify Beatty, as well as being the prevailing party for the 998 Offer. Finally, for the sixth factor, Plaintiffs argued that this case consumed considerable time and went on for two years and would have gone on much longer if Hamid had not accepted the 998 Offer.
Defendants argue that the attorney fee award should be reduced as the hours billed are excessively unreasonable. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (
Chavez v. City of Los Angeles
(2010) 47 Cal.4th 970, 990-991(citing
Serrano v. Unruh
(1982) 32 Cal.3d 621, 635).)
This Court previously acknowledged in its tentative ruling the apparent excessive billing for several of Plaintiffs motions: the Anti-SLAPP Motion (160.5 hours), Opposition to Motion to Disqualify (96.5 hours), Demurrer (90.2 hours), Motion for Attorney fees re Anti-SLAPP Motion (49 hours), and Motion to Quash Summons (38.6 hours). This Court also suggested reducing the time spent on those motions by 25%. Defendants argue that they should be reduced by at least 60% because they are beyond excessive.
Other specific tasks that Defendants argue were excessively billed were the 4.0 hours for a half-page notice of continuance; 12.1 hours for a subpoena with 8 document requests; 14.7 hours spent on two identical subpoenas with 6 document requests; 22.3 hours spent on 3 page ex parte application and 2 page declaration to advance a hearing date; 18.3 hours preparing for and drafting a mediation brief; and 10.3 hours on generic case analysis over 48 entries. Defendants argue that the Court should also take into account all of these minor issues in awarding the attorney fees.
Defendants also argue that the at least 209.5 hours spent in relation to the Anti-SLAPP motion was beyond excessive and should be reduced by more than 25%. Defendants cite a case where the Court of Appeal affirmed a reduction in attorney fees and costs related to an Anti-SLAPP motion from $112,288.63 to just $23,000, with the Court of Appeal stating that claiming 200 hours of work & seems excessive and that such a motion should not have been such a monumental undertaking. (
Maughan v. Google Technology, Inc.
(2006) 143 Cal.App.4th 1242, 1248-1252.) Defendant
Finally, Defendants argue that the Court should consider Defendants expert declaration because it would be admissible because the experts declaration included descriptions of her experience as a fee expert. (See Coleman Decl., ¶¶ 3-10, 14, and 15.) The Court previously sustained Plaintiffs objections to the Coleman Declaration, but in light of Defendants arguments and Colemans supplemental declaration, the Court will consider Colemans declaration.
In light of all of the foregoing, the Court believes that some reduction of the requested fees is necessary. Both the previously indicated major issues and the minor issues that Defendants have brought to the attention of the Court should be reduced.
The amount that the Court will start with is $543,156 in fees actually incurred. The Court previously considered reducing certain fees by 25%. Defendants request an across the board reduction of 60%, which would be $217,262 in fees awarded. Alternatively, Defendants request that the Court do an across the board reduction of 25%, since that percentage is what the Court previously found was appropriate. Based on both the major and minor issues with the billing records, the Court agrees that an across the board reduction is appropriate. The Court also finds that an across the board reduction of 25% is reasonable. That would make the fee award $407,367.
The Court will award this amount. Plaintiffs have demonstrated that their attorneys hourly rates are rates are reasonable. Furthermore, this was a complex class requiring a lot of motion practice, particularly where the Anti-SLAPP motion is concerned. Plaintiffs have provided proof of the amount of time spent on the case through the now-unredacted billing statements.
CONCLUSION
Plaintiffs motion for attorney fees is granted in the amount of $407,367.00. Costs should be requested in a memorandum of costs.
Moving party to give notice.
Document
ERIN KRAKOW VS TESLA, INC.
Jul 02, 2024 |
Daniel M. Crowley
|
Product Liability ? Song-Beverly Consumer Warranty Act¿(Lemon Law) (General Jurisdiction) |
Product Liability ? Song-Beverly Consumer Warranty Act¿(Lemon Law) (General Jurisdiction) |
24STCV16413
Document
MICHAEL KORS VS ARROW INN
Jul 15, 2019 |
Georgina T. Rizk
|
Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
19STCV24563
Preview
Kerry P. Zeiler (SBN 233944) 1 ZEILER LAW GROUP 14205 SE 36th St Ste 100 2 Bellevue, WA 98006 (714) 953-6600 3 kerry@zeilerlawgroup.com 4 Attorney for Plaintiff, 5 RAD COMMUNICATIONS, INC. 6 7 8 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF LOS ANGELES 10 11 RAD COMMUNICATIONS, INC., ) Case No.: ) COMPLAINT 12 Plaintiff, ) 13 ) 1) BAD FAITH (INSURANCE) vs. ) 2) BAD FAITH (INSURANCE) 14 ) 3) INTENTIONAL 15 INTERFERENCE WITH SECURITY NATIONAL INSURANCE ) CONTRACTUAL ADVANTAGE 16 COMPANY, AMTRUST FINANCIAL ) 4) CONFLICT COUNSEL SERVICES GROUP, AND AMTRUST ) COMPENSATION 17 NORTH AMERICA, ) 18 Defendants. ) 19 ) ) 20 ) 21 ) 22 23 JURISDICTIONAL ALLEGATIONS 24 1. Plaintiffs RAD COMMUNICATIONS, INC. (herein “RAD”) is a business 25 incorporated in the State of Washington in 2018 with its primary place of business in the 26 County of Los Angeles, State of California. 27 2. Defendants SECURITY NATIONAL INSURANCE COMPANY (herein 28 “Security National”) is a nationwide insurer, incorporated in Delaware, with its primary place 1 COMPLAINT 1 of business in Cleveland, Ohio. Based on information and belief, Security National is 2 registered and licensed to issue policies of commercial insurance in the states of Washington 3 and California. 4 3. AMTRUST FINANCIAL SERVICES GROUP is a financial services and insurance 5 holding company that owns multiple affiliate insurers, including Security National. 6 4. AMTRUST NORTH AMERICA (herein “Amtrust”) is a national insurer 7 domiciled in Delaware. It is a wholly owned insurance servicing and adjusting company that 8 services and adjusts claims for AmTrust Financial Services Group-owned and affiliated 9 insurers, including Security National. 10 5. At all relevant times, Security National was the underwriter for a policy of general 11 liability insurance issued to RAD Communications, Inc. on July 11, 2018, policy number 12 NA155442100 (See Exhibit 1). The policy covered the period from July 11, 2018, through 13 July 11, 2019, with a policy limit of $1,000,000 per occurrence and a policy aggregate of 14 $2,000,000.00. 15 6. The general contractor for the project at issue, MASTEC (herein “Mastec”), a 16 corporation domiciled in the State of Florida, was listed as an additional insured on the policy. 17 7. On April 29, 2021, plaintiff and Mastec were sued in San Francisco County Superior 18 Court in a case styled, Gercinta, LLC and Cinta Aveda Institute, Inc. v. Mastec North America, 19 Inc. and RAD Communications, Inc., case number CGC-21-591432, alleging various property 20 damage due to water leakage from a subterranean hole dug by RAD while installing high speed 21 cable wire for Mastec. The basic allegation from the Gercinta case was that the hole in the 22 ground to install cable was not properly covered, and after a rainfall there was flooding to 23 Gercinta’s business located in the basement of a commercial building in San Francisco, 24 California. 25 8. RAD contacted their insurer, Security National, and tendered the lawsuit on or 26 about April 15, 2021. Mastec, which was also sued by Gercinta, tendered the lawsuit to 27 defendants on April 16, 2021. (See Exhibit 2). 28 9. The policy of insurance includes a duty to defend. 2 COMPLAINT 1 10. Security National delegated Amtrust to adjust the claim. Amtrust took no action 2 other than to say it was “investigating” and provided no defense to RAD or Mastec. 3 11. Accordingly, Mastec retained private counsel to litigate and filed a cross-complaint 4 against RAD for indemnity. Then, the Gercinta plaintiffs submitted a demand for 5 approximately $400,000.00 to Mastec for the value of their losses. Mastec seized and withheld 6 receivables payable to RAD of this amount to “protect their interests.” 7 12. The Gercinta lawsuit proceeded, and Gercinta sought RAD’s default in that case. 8 When RAD’s pleas to their insurer and the adjuster Amtrust went unanswered, RAD retained 9 the services of private counsel Kerry Zeiler, Zeiler Law Group (herein “Zeiler”). 10 13. Zeiler negotiated with Gercinta for RAD to file an Answer and prepared and filed 11 one on RAD’s behalf. He then proceeded to litigate the defense of the Gercinta lawsuit on 12 RAD's behalf, conducting discovery and negotiating with the Gercinta plaintiffs and Mastec. 13 14. Mastec’s seizure of more than $400,000 for receivables owed to RAD on work 14 already completed in order to “secure its interests,” was devastating. RAD purchased the 15 policy of insurance for the same reason it was sold by the defendants: to prevent such an 16 occurrence imperiling RAD’s assets. RAD was left unable to pay sub-contractors, had to 17 abandon already bid upon work, lay off crews, and shut down its operations in the State of 18 Washington, all to its general loss subject to proof at the time of trial. 19 15. RAD suffered significant reputational harm from the defendants’ failure to abide by 20 their insurance contracts, resulting in additional, lasting reputational harm and general 21 damages in an amount subject to proof at trial. 22 16. RAD’s business was forcibly reduced because it could not collect on its outstanding 23 receivables from one of its largest customers because its insurer, Security National, refused to 24 provide a defense and indemnify the additional insured, Mastec. This has resulted in a 25 demonstrable loss of opportunity and consequential damages, all in an amount subject to 26 proof at the time of trial. 27 17. Zeiler contacted AmTrust multiple times, demanding on RAD’s behalf that 28 AmTrust identify its rationale for not providing a defense when a duty to do so exists under 3 COMPLAINT 1 the policy. RAD also requested that the defendants provide a duplicate of the entire insurance 2 policy and any riders that might support the defendants’ conduct. Defendants took no action 3 and provided no evidence, decision letters, or other documentation. 4 18. On May 16, 2022, Zeiler sent correspondence to AmTrust and Security National 5 demanding they immediately provide the policy benefits to RAD and also defend the 6 additional insured, Mastec. 7 19. In response, on June 22, 2022, the defendants sent coverage letters to RAD and 8 Mastec indicating there was likely coverage for the Gercinta action but claimed they were “still 9 investigating.” 10 20. Defendants took no other action. 11 21. On October 31, 2022, Zeiler sent a certified letter to Security National stating that 12 RAD would separately sue the defendants for their bad faith failure to defend, failure to 13 indemnify, for loss and harm suffered by RAD due to the defendants’ failure to meet the 14 obligations of their policy of insurance, and for all consequential damages, pointing out that 15 the aggregate damages were estimated to exceed $2,000,000.00. (See Exhibit 3). 16 22. On December 21, 2022, the defendants sent RAD a letter indicating they were 17 providing a defense to RAD in the Gercinta case with a reservation of rights. (See Exhibit 4). 18 23. By this time, Zeiler had negotiated the resolution of the cross-complaint by Mastec, 19 had agreed to file an amended Answer admitting liability to the Gercinta complaint, and 20 Gercinta agreed it would then dismiss Mastec from the action. Because the dismissal was 21 without prejudice, Mastec refused to return the seized receivables to RAD until the defendants 22 completely indemnified Mastec for all its incurred fees and costs. 23 24. Zeiler then sent correspondence to the defendants indicating receipt of the notice it 24 was now providing defense counsel barely three months before trial, but stating that RAD had 25 elected under Cal. Civ. Code § 2860 to retain Zeiler as conflict counsel. Zeiler’s 26 correspondence provided his billable rates, asserted cooperation with retained panel counsel, 27 and indicated he would accept as a reduced fee the hourly rate of a partner of equivalent 28 4 COMPLAINT 1 experience the defendants would routinely pay to its panel counsel. No response from the 2 defendants was forthcoming. 3 25. Zeiler provided separately calculated monthly invoicing to the defendants 4 commencing on the date they’d retained panel counsel and notified RAD they were providing 5 separate counsel: December 21, 2022. Defendants did not pay these sums. 6 26. The Gercinta case was resolved following a full-day mediation negotiated by Zeiler 7 and panel counsel with the Gercinta plaintiffs. The defendants sent a claims representative; 8 panel counsel attended, and RAD’s principals and Zeiler also attended. 9 27. The case was resolved when the defendants agreed to pay the Gercinta plaintiffs a 10 sum of money under the policy. However, those sums were not paid until May 2023. 11 28. RAD learned in June of 2023 that the defendants had paid all Mastec’s outstanding 12 private attorney’s fees incurred in the Gercinta case in January 2023, but did not provide a 13 release. 14 29. On or about July 20, 2023, Zeiler negotiated the release of RAD’s retained 15 receivables from Mastec, which had been held due to the defendants' failure to provide the 16 benefits of the insurance policy and indemnify Mastec. 17 30. RAD continued to urge the defendants to pay for its incurred private attorney’s fees, 18 since the Gercinta case settled in April 2023, but defendants did not. 19 31. On or about October 2023, the defendants paid a portion of Zeiler’s outstanding fees 20 incurred by RAD in the Gercinta case but refused to pay for any fees incurred by Zeiler after 21 the date the defendants say they retained panel counsel to defend RAD in the Gercinta action. 22 VENUE ALLEGATIONS 23 32. Venue is appropriate in Los Angeles County because the contractor was entered into 24 in this county. 25 33. The insurance policy was purchased to cover jobs in the State of California, and the 26 contract was entered into in California. 27 34. The issue of Cumis or conflict counsel and the obligation of the insurer to pay the 28 fees for such counsel is resolved by way of arbitration per Cal. Civ. Code § 2860 (c)(2). A request for arbitration to the defendants was ignored. 5 COMPLAINT 1 FIRST CAUSE OF ACTION— BAD FAITH (Against Defendants). 2 3 35. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 34, 4 inclusive, as though fully set forth herein. 5 36. The defendants issued a general liability insurance policy to RAD 6 Communications, Inc., which provided a duty to defend and included Mastec as an 7 additional insured. 8 37. The defendants did not provide a defense to RAD, forcing RAD to obtain private 9 counsel. 10 38. The defendants did not provide a defense to Mastec, an additional insured under 11 the policy, resulting in Mastec seizing more than $400,000 in receivables owed to RAD to 12 “secure their interests,” causing economic havoc to RAD resulting in tremendous, 13 accumulated damages, including the shuttering of RAD’s operations in the State of 14 Washington. 15 39. The defendants finally provided a defense to RAD on December 21, 2022 after 16 private counsel Zeiler threatened a bad faith action, but the Gercinta case was nearly 17 resolved by that point with the trial less than three months away. 18 40. The defendants did not pay Mastec’s incurred private attorney fees despite being 19 obligated to provide a defense under the terms of the policy and continuously delayed doing 20 so until January 2023 or later. 21 41. The defendants did not pay any portion of RAD’s incurred attorney’s fees for the 22 defense of the Gercinta case and delayed doing so until October 2023, at least six months 23 after the Gercinta case was settled. 24 42. A failure or delay in providing policy benefits due to an insured is actionable as the 25 tort of bad faith or a breach of the implied covenant of good faith and fair dealing. 26 43. The plaintiffs have been damaged and seek an award of their incurred losses, 27 expectation damages, costs, and attorney’s fees in an amount subject to proof at trial. 28 44. The defendants’ failure and delay to provide benefits that they owed to their insured under the insurance contract is prima facie evidence of their bad faith and breach, but the 6 COMPLAINT 1 failure to provide benefits due under the policy in light of RAD’s communication to the 2 defendants of the harm they were suffering because Mastec seized RAD’s assets to “make it 3 whole” is reprehensible conduct sufficient to justify an award of punitive damages. The very 4 purpose of purchasing a policy of insurance is to prevent RAD’s assets from being taken or 5 encumbered for a covered loss. The facts here evidence both a corporate policy and practice 6 by the insurer defendants of refusing to provide insurance policy benefits, using facile 7 subterfuge such as claiming an “investigation” was ongoing after RAD had tendered the 8 Gercinta lawsuit. 9 45. Further, only after being warned that RAD would bring a bad faith claim on 10 October 31, 2022, did the defendants finally fulfill their duty to defend and provide policy 11 benefits to RAD. This occurred more than a year and a half after the Gercinta lawsuit was 12 tendered. Worse, the defendants refused to provide a bargained-for defense to the additional 13 insured, Mastec. Their apathy and reckless disregard for the financial repercussions suffered 14 by RAD, leading to the shutdown of its operations in Washington state and employee 15 layoffs, serve as clear evidence of a reckless disregard for the rights of their own insured. This 16 conduct stems from the defendant’s refusal to adhere to policy requirements, prioritizing 17 profit maximization over fulfilling their obligations. 18 19 SECOND CAUSE OF ACTION— BAD FAITH FAILURE TO SETTLE 20 (Against Defendants). 21 22 46. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 45, 23 inclusive, as though fully set forth herein. 24 47. The defendants are insurers contracted to provide policy benefits under the terms of 25 a general liability policy. (See Exhibit 1). 26 48. On or about April 2021, RAD tendered the Gercinta lawsuit to the defendants and 27 requested a defense under the terms of the policy. The same month, the additional insured, 28 Mastec, also tendered the Gercinta lawsuit and requested a defense under the policy. 7 COMPLAINT 1 49. Mastec then cross-complained against RAD for indemnity, demanding RAD 2 indemnify them from the Gercinta action, provide counsel to them, and pay all expenses. 3 50. Defendants refused to settle the claims against RAD, for which RAD was required 4 to pay counsel. 5 51. The defendants finally provided a defense to RAD on December 21, 2022, after 6 private counsel Zeiler threatened a bad faith action. But the Gercinta case was nearly 7 resolved by that point with the trial less than three months away, and RAD had to incur the 8 cost, expense and impact to its operations of the defendants’ failure to settle the claims 9 against it within the policy limits. 10 52. Based on information and belief, no effort was made to pay the sums owing to 11 Mastec were forthcoming until after the case had been settled and resolved, in or about July 12 of 2023. 13 53. Defendants engaged in bad faith conduct by refusing to settle the claims against 14 RAD from Mastec, all to their general damage in an amount subject to proof at trial. 15 16 THIRD CAUSE OF ACTION— INTENTIONAL INTERFERENCE WITH CONTRACTUAL ADVANTAGE 17 (Against Defendants). 18 19 54. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 53, 20 inclusive, as though fully set forth herein. 21 55. The defendants are insurers contracted to provide policy benefits under the terms of 22 a general liability policy. (See Exhibit 1). 23 56. On or about April 2021, RAD tendered the Gercinta lawsuit to the defendants and 24 requested a defense under the terms of the policy. The same month, the additional insured, 25 Mastec, also tendered the Gercinta lawsuit and requested a defense under the policy. 26 57. The defendants refused to provide the bargained-for policy benefits to RAD or to 27 indemnify and provide a defense to the additional insured, Mastec. 28 8 COMPLAINT 1 58. Mastec then seized over $400,000 in receivables it owed RAD for work already 2 performed and refused to pay any additional invoices for services until the Gercinta 3 plaintiff’s claims were resolved and its out-of-pocket attorney’s fees were paid. Mastec and 4 its wholly owned subsidiary, Sefnco, also a RAD client, likewise froze payments to RAD. 5 59. This reaction by Mastec to protect itself from the harms for which RAD purchased 6 a policy of insurance from the defendants and named Mastec as an additional insured 7 damaged RAD’s business and resulted in the loss of hundreds of thousands of dollars in 8 revenue RAD had routinely received from Mastec and Sefnco. 9 60. The defendants' intentional refusal to delay and fail to provide benefits under the 10 insurance policy undermined the relationships between RAD and both Mastec and Sefnco. 11 Those companies would continue to seek RAD’s assistance on projects for which RAD had 12 developed industry expertise, but while its receivables were being held, RAD was forced to 13 refuse the work and lost already bid on and accepted jobs. 14 61. RAD has been permanently damaged by the defendant’s knowing interference in its 15 contractual relationship with Mastec, the additional insured, and Mastec’s subsidiaries. 16 62. A failure to provide benefits due to an insured under the policy is actionable as the 17 tort of bad faith or a breach of the implied covenant of good faith and fair dealing. 18 63. The plaintiffs have been damaged, and seek an award of their incurred losses, 19 expectation damages, costs, and fees in an amount subject to proof at trial. 20 64. The defendants’ failure and delay to provide benefits that they owed to their insured 21 under the insurance contract is prima facie evidence of their bad faith and breach, but the 22 failure to provide benefits due under the policy in light of RAD’s communication to the 23 defendants of the harm they were suffering because Mastec seized RAD’s assets to “make it 24 whole” is reprehensible conduct sufficient to justify an award of punitive damages. The very 25 purpose of purchasing a policy of insurance is to prevent RAD’s assets from being taken or 26 encumbered for a covered loss. The facts here evidence both a corporate policy and practice 27 by the insurer defendants of refusing to provide insurance policy benefits, using facile 28 9 COMPLAINT 1 subterfuge such as claiming an “investigation” was ongoing after RAD had tendered the 2 Gercinta lawsuit. 3 65. Further, only after being warned that RAD would bring a bad faith claim on 4 October 31, 2022, did the defendants finally fulfill their duty to defend and provide policy 5 benefits to RAD. This occurred more than a year and a half after the Gercinta lawsuit was 6 tendered. Worse, the defendants refused to provide a bargained-for defense to the additional 7 insured, Mastec. Their apathy and reckless disregard for the financial repercussions suffered 8 by RAD, leading to the shutdown of its operations in Washington state and employee 9 layoffs, serve as clear evidence of a reckless disregard for the rights of their own insured. This 10 conduct stems from the defendant’s refusal to adhere to policy requirements, prioritizing 11 profit maximization over fulfilling their obligations. 12 13 FOURTH CAUSE OF ACTION— CONFLICT COUNSEL ARBITRATION 14 (CAL. CIV. CODE § 2860 (C)). (Against Defendants). 15 16 66. Plaintiffs incorporate by reference each allegation in paragraphs 1 through 65, 17 inclusive, as though fully set forth herein. 18 67. RAD tendered the Gercinta lawsuit to the defendants in April of 2021 and 19 requested a defense. 20 68. The defendants did not agree to provide RAD defense counsel until December 21, 21 2022, and did so with a reservation of rights. 22 69. The plaintiff notified the defendants that it intended to keep its privately retained 23 attorney, Zeiler, since RAD had already informed the defendants that it intended to sue for 24 bad faith, and the defendants were providing a defense with a reservation of rights. 25 70. Zeiler sent the defendants notice under Cal. Civ. Code § 2860 that he was staying in 26 the Gercinta case at RAD’s insistence and that since there was a reservation of rights, the 27 insurer was obligated under that code section to pay Zeiler’s fees at a comparable rate to 28 those for their panel counsel. 10 COMPLAINT 1 71. Zeiler participated in all matters and proceedings and had already negotiated a 2 resolution to Mastec's cross-complaint and refined the case issues for a pending resolution 3 by the time the defendants bothered to provide RAD with its policy benefits. The trial was 4 imminent, set to occur in March 2023. 5 72. Zeiler requested that the defendants either pay an equivalent rate they would pay 6 panel counsel with Zeiler’s experience or pay Zeiler’s contractual rate agreed to by RAD. 7 73. The defendants made no payments toward RAD’s incurred attorney’s fees, or 8 Zeiler’s invoices for conflict counsel work. 9 74. Zeiler billed RAD and copied the defendants monthly for all work performed on 10 the Gercinta case. 11 75. Zeiler cooperated with the defendants’ retained panel counsel and participated in 12 every proceeding and conference. 13 76. The case was resolved at a mediation on April 25, 2023, and a final settlement was 14 entered into shortly thereafter. Zeiler participated in the all-day mediation and drafted 15 settlement documents. 16 77. In October 2023, the defendants finally made a payment toward RAD’s incurred 17 attorney’s fees. Still, they did not pay the entire sum RAD incurred to Zeiler for defense of 18 the Gercinta case and refused to pay any incurred fees after December 21, 2022. 19 78. By the statute's terms requiring the defendants to compensate Zeiler as conflict 20 counsel, Cal. Civ. Code § 2860 (c), disputes must be arbitrated. RAD’s request that the 21 defendants proceed with an arbitration was ignored. 22 79. The plaintiff seeks an award of such damages and relief as the arbitrators deem just 23 and proper, including all of the damage remedies available to plaintiffs and their incurred 24 attorney’s fees and costs for having to litigate this issue. 25 26 27 28 11 COMPLAINT 1 2 PRAYER 3 PLAINTIFFS pray for damages and relief against the defendants, as follows: 4 1) All general damages proven at trial. 5 2) All special damages proven at trial. 6 3) Attorney’s fees and costs. 7 4) Punitive damages. 8 5) Such other relief as the court may deem just and proper. 9 Dated this 5th Day of July 2024 10 Respectfully, 11 By: 12 Kerry P. Zeiler (SBN 233944) Attorney for Plaintiff, 13 RAD COMMUNICATIONS, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 COMPLAINT EXHIBIT 1 EXHIBIT 2 Christopher T. Sakauye One Embarcadero Center, Suite 2600 Associate San Francisco, CA 94111 Direct Line: (415) 677-5510 Telephone: (415) 398-3344 cts@severson.com Facsimile: (415) 956-0439 April 16, 2021 Via Electronic Mail: David Arias Anthony Mano AmTrust North America RAD Communications P.O. Box 89404 8255 Quinault Road Cleveland, OH 44101 Blaine, WA 98230 David.Arias@amtrustgroup.com anthonymano@radcommunicationsinc.com Re: Property Damage at 305 Kearny Street, San Francisco, CA 94108 ESIS Claim No. 49344958701880 Date of Incident: November 4, 2018 Our File No.: 72013-0003 Dear Mr. Arias and Mr. Mano: We represent MasTec North America (“MasTec”) in connection with the above- referenced claim. This letter serves as a further request to RAD Communications (“RAD”) to defend and indemnify MasTec in connection with the following accident. ACCIDENT FACTS This property damage claim arises from work done by RAD at the Cinta Aveda Institute located at 305 Kearny St., San Francisco, CA 94108 (“property”). The Cinta Aveda Institute (“Cinta Aveda”) contracted with Verizon to install fiber optic cable in the alleyway of its property. Verizon contracted with MasTec to perform the underground work of placing the fiber optic cable. MasTec, in turn, contracted with RAD to perform the trenching for this project. From our review of previous correspondence related to the tender of defense and indemnity, it appears that there is some confusion regarding the timeline of events regarding this claim. We have done our best to summarize the correct timeline for your consideration. If you dispute these facts, we ask that you produce evidence supporting any dispute. From October 22, 2018 to November 2, 2018, RAD performed the trenching to place a “hand hole” on the property. Reggie Herrera was the RAD supervisor and Sandro Gutierrez was the RAD foreman. The “hand hole” was not placed due to complications with the job and RAD was told to patch up the trench and restore the surrounding area. (Exhibit A.) 72013.0003/15737948.1 San Francisco ~ Orange County AmTrust North America April 16, 2021 Page 2 On November 4, 2018, RAD supervisor Reggie Herrera was contacted by Gerard Gibbons, landlord for the property, who complained of expired construction signs, “black road surface” that was ruining the floors of the property and a puddle of water that had developed due to the work RAD performed. (Exhibit B.) On November 8, 2018, Mr. Gibbons took the attached picture of the affected area. (Exhibit C.) It is our understanding that RAD performed this work. On November 11, 2018 and November 13, 2018 Mr. Gibbons again reached out to Mr. Herrera with updates about the damage. On Wednesday, November 14, 2018 (mistakenly stated as November 13 in the report), the conditions became worse when a hole developed where RAD had previously performed patchwork on the property. This resulted in water leaking onto the property which caused damage. (Exhibit B.) Below are pictures of the damages from the water intrusion: A copy of the Demand Letter sent by Cinta Aveda’s attorney is attached for your consideration. (Exhibit D.) 72013.0003/15737948.1 AmTrust North America April 16, 2021 Page 3 WRITTEN CONTRACTS AND INDEMNITY PROVISIONS Prior to the work RAD performed on the property, RAD entered into a written contract with MasTec. We have attached the contract for your review. (Exhibit E.) Under the contract, RAD was to perform “underground construction.” The contract between MasTec and RAD also contained an indemnity provision in paragraph 16. It states in relevant part: The contract also required RAD to carry certain types and levels of insurance including Commercial General Liability insurance with limits of at least $2 million. The contract required RAD to include MasTec as an additional insured. A copy of the insurance certificate is attached. (Exhibit F.) Under its contract with MasTec, RAD promised to defend and indemnify MasTec for any claim for “damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance of nonperformance of the Work contemplated” by the contract. RAD performed trenching work at the property and sent the attached invoice to MasTec for the work it performed. (Exhibit G.) This claim arises out of property damage 72013.0003/15737948.1 AmTrust North America April 16, 2021 Page 4 arising out of, resulting from and caused by the work of RAD. Thus, RAD must defend and indemnify MasTec pursuant to the contract. RAD also procured an insurance policy that named MasTec as an additional insured under the policy. Thus, AmTrust is required to defend and indemnify MasTec pursuant to the terms and conditions of the policy. To date, AmTrust has not confirmed its obligations to defend and indemnify MasTec in connection with this claim. Your previous correspondence with ESIS indicates that you believe that the “underground construction” work RAD performed at the site “may” not have been the same work that caused the damage or that a different party “may” have performed the trenching work that caused the water intrusion. We are not aware of any evidence that would support such a contention. If this is your contention, please immediately forward any evidence you have to support this claim. We know that RAD was informed of the property damage shortly after it occurred. RAD supervisor Reggie Herrera told Cinta Aveda that he would take care of the problem, admitting responsibility on RAD’s part. RAD even performed an inspection of the property on November 29, 2018 where it was agreed that there was damage to the property. Shortly thereafter, Mr. Herrera scheduled a restoration company to inspect the property as well on December 3, 2018. It has not been disputed by any party that the water leakage was caused by RAD’s work at the property. In light of the forgoing, MasTec hereby demands that RAD immediately agree to defend and indemnify MasTec in the above-referenced claim. MasTec also requests that RAD inform its insurance carrier or carriers of the claim and MasTec’s demand for defense and indemnification, and demand that each carrier agree to provide MasTec with a defense and indemnity. We would request that you kindly respond to this letter to advise of the agreement to defend and indemnify MasTec and to provide us with the identity and contact information for the liability insurance carrier or carriers whose coverage extends to MasTec as an additional named insured. Sincerely, Christopher T. Sakauye NBK/CTS Enclosures cc: MasTec North America 72013.0003/15737948.1 EXHIBIT A EXHIBIT A EXHIBIT B EXHIBIT B EXHIBIT C EXHIBIT C EXHIBIT D EXHIBIT D EXHIBIT E EXHIBIT E EXHIBIT F EXHIBIT F EXHIBIT G EXHIBIT G EXHIBIT 3 ZEILER LAW GROUP ATTORNEYS AT LAW October 31, 2022 14205 SE 36th Street, Suite 100 Sent via Overnight Mail Bellevue, WA 98006 (888) 752-1270 Security National Insurance MAPFRE Insurance Company (951) 963-1260 FAX Company Attn: Amanda Garcia, Reg. Agent Attn: Sarah Clemens, Reg. Agent 330 N. Brand Blvd., Ste. 700 4640 Admiralty Way, 5th Floor Glendale, CA 91203 Marina Del Rey, CA 90292 National Union Fire Insurance Co. AMTrust North America of Pittsburgh, PA David Arias, Adjuster Offices in California, Minnesota Attn: Melissa DeKoven, Reg. Agent PO Box 4026 & Washington State 2710 Gateway Oaks Drive, Ste. 150N Concord, CA 94524 Sacramento, CA 95833 Re: Gercinta, LLC, et al. v. Mastec North America, Inc., et al. San Francisco case number Policy numbers NA155442100, QEXR4697201 To Whom It May Concern, I write to assert claims on behalf of my client, your insured, RAD Litigation in the courts of: Communications, Inc. under the general liability and umbrella policies State Trial Courts identified here. State Appellate Courts Federal District Courts In 2021, RAD Communications, Inc. was sued in the San Francisco Superior U.S. Bankruptcy Courts Court on a liability claim for work covered under the policies at issue. RAD Administrative Courts Communications, Inc. were also sued in the same action by Mastec North America, Inc., the general contractor, on claims for a contractual and equitable indemnity. Under the same insurance policies, you insured Mastec North America, Inc. as an additional insured. RAD Communications, Inc. and Mastec North America, Inc. both tendered this lawsuit and asserted claims for their policy benefits. Security National Insurance Company assigned the claim to an adjuster, David Arias of AmTrust North America, who is also copied on this correspondence. Mr. Arias’s involvement has been virtually non-existent, and his communications have likewise facile. You have failed to tender a defense to either RAD Communications, Inc., your primary insured, or Mastec North America, Inc. To date, RAD Communications has incurred $53,153.76 in http://www.zeilerlawgroup.com SEND ALL MAIL TO BELLEVUE OFFICE Letter to Insurers Re: Gercinta, LLC, et al. v. Mastec North America, Inc. October 31, 2022 Page 2 of 2 legal fees and costs to my office related to this case. A demand is made for payment of that entire sum. Each of you, has already failed to provide a defense. That will be pursued as a claim for bad faith. In mitigation, remit the entire incurred attorney’s fees to: Zeiler Law Group Attorney-Client Trust. My office requires an evergreen retainer of $10,000.00, and this is the clause agreed to by RAD Communications in their attorney-client fee agreement regarding the San Francisco lawsuit. To ensure that RAD Communications, Inc. remains represented as you have failed to provide them a defense, please also replenish RAD’s deposit to my office of $10,000.00 and keep that sum on deposit at all times while the litigation remains pending. Further, your additional insured, Mastec North America, Inc., has seized receivables owed to my client through one of its subsidiaries of over $400,000.00 because of your knowing and willful failure to provide policy benefits to your additional insured related to this case. As a result, RAD Communications has been devastated in its business; they are small business tradesmen not able to absorb a loss of $400,000.00 being held because the insurers they contracted with to insure the loss at issue are ignoring the claim and refuse to provide benefits. My client has authorized my office to bring suit against you for your bad faith failure to provide insurance policy benefits, as well as your failure to defend. This is your notice of these claims. In mitigation, please remit the outstanding attorney’s fees incurred by your insured regarding this action in the amount of $53,153.76. If you wish my office to continue to represent RAD in this litigation instead of panel counsel, deposit $10,000.00 and provide my office with your particulars for invoicing (we use UTBMS coding and can issue LEDES 98B invoices). Please provide your claim representative's information and any claim numbers regarding this claim or my client’s asserted bad faith claims. Should you have any questions or comments, please do not hesitate to contact the undersigned. Very truly yours, Kerry P. Zeiler KPZ/nbm EXHIBIT 4 AmTrust North America Post Office Box 89404 • Cleveland, OH 44101 (p) 888.239.3909 • (f) 678.258.8395 Email: amtrustclaims@amtrustgroup.com December 21, 2022 Sent Via E-mail only anthonymano@radcommunicationsinc.com ronsingh@radcommunicationsinc.com RAD Communications, Inc. Attn: Anthony Mano and Ron Singh 150 S. Ann Street Monroe, WA 98272 Re: Gercinta, LLC ; and Cinta Aveda Institute, Inc v Mastec North America, Inc. ; and RAD Communications, Inc. Superior Court, San Francisco County – Case No. CGC-21-591432 Our Named Insured: RAD Communications, Inc. Underwriting Company: Security National Insurance Company Policy Number(s): XXXXX4421-00 (eff. 07/11/2018 to 07/11/2019) Our Claim Number: 3118409-1 Loss Location: Cinta Aveda Institute – 305 Kearny Street, San Francisco CA 94108 Dear Mr. Mano and Mr. Singh: AmTrust North America is the claims administrator for Security National Insurance Company with respect to the above-referenced policies issued to RAD Communications, Inc. (hereinafter, RADCI) Please be advised that Security National Insurance Company will provide a defense to RADCI, pursuant to a reservation of rights as more fully set forth in this letter. We have retained Colette Stone of Stone & Associates, APC to represent RADCI. Colette Stone may be reached at cstone@stonelawoffice.com and (925) 938-1555. Please cooperate fully with your attorney in furtherance of your defense pursuant to the terms of the policies. Please note that Security National Insurance Company is not obligated to fund the cost of affirmative claims against any third party, nor is it the obligation of assigned counsel to do so. If any insured has claims against a third party, it should consult counsel of its own selection at its own expense regarding those claims. RAD Communications, Inc. Page 2 December 21, 2022 BACKGROUND Security National Insurance Company recounts the relevant facts, based on information received to date, and based on the allegations made in the claim. In so doing, we do not intend to suggest that the allegations are true but do so only as they are relevant to Security National Insurance Company’s coverage determination. Cinta Aveda Institute is the building that experienced water intrusion into their basement causing alleged damages. The alleged source of the damage was the trench created by RADCI in their reported scope of digging a trench under a subcontract with MasTec North America, Inc., following MasTec’s purported contract with Verizon for placement of fiber optic lines. The general master contract between RADCI and MasTec is dated April 17, 2018, wherein RADCI is noted as being engaged in the business of Underground Construction. RADCI provided a Purchase Order dated 11-14-2018 / PO#121232654, directed to MasTec and titled Job# Belden Place NFID#1706ALZA.021 - 80 feet – C-100 Trench $14,629.60 / 1 – C-100 Handhole Large $550.00 - Total: $15,179.60. The map shared for the project shows the subject trench beginning on Bush Street and ending in St. George Alley, which presumably terminates in the area adjacent to 305 Kearny, the Cinta Aveda Institute. The trench work allegedly allowed water to enter into the basement of the Cinta Aveda Institute causing damages to the basement classroom area. THE POLICY In this letter, we may paraphrase the policy language or quote only part of a provision/endorsement. We do so to make the letter clearer and easier to read. We do not intend to misquote, misstate, or misrepresent any part of the policies. If there is a discrepancy between this letter and the policy language, the policy language governs. In addressing only certain terms, conditions, and exclusions, Security National Insurance Company neither waives nor intends to waive its right to assert any other terms, conditions, and exclusions that might apply to limit or defeat coverage. The policy provides General Liability coverage subject to form CG 00 01 12 07. The applicable limits are $1,000,000 per Occurrence with a General Aggregate Limit of $2,000,000 and a Products/Completed Operations Aggregate Limit of $2,000,000. According to the policies’ declarations, RADCI’s business description is “Satellite Dish Installation, Service or Repair”. RAD Communications, Inc. Page 3 December 21, 2022 Commercial General Liability Form CG 00 01 12 07, states in relevant part: SECTION I - COVERAGES COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. * * * b. This insurance applies to “bodily injury” and “property damage” only if: (1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; (2) The “bodily injury” or “property damage” occurs during the policy period; (3) Prior to the policy period, no insured listed under Paragraph 1. of Section II – Who Is An Insured and no “employee” authorized by you to give or receive notice of an “occurrence” or claim, knew that the “bodily injury” or “property damage” had occurred, in whole or in part. If such a listed insured or authorized “employee” knew, prior to the policy period, that the “bodily injury” or “property damage” occurred, then any continuation, change or resumption of such “bodily injury” or “property damage” during or after the policy period will be deemed to have been known prior to the policy period. c. “Bodily Injury” or “property damage” which occurs during the policy period and was not, prior to the policy period, known to have occurred by any insured listed under Paragraph 1. of Section II – Who Is An Insured or any “employee” authorized by you to give or receive notice of an “occurrence” or claim, includes any continuation, change or resumption of that “bodily injury” or “property damage” after the end of the policy period. d. “Bodily injury” or “property damage” will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section II – Who Is An Insured or any “employee” authorized by you to give or receive notice of an “occurrence” or claim: RAD Communications, Inc. Page 4 December 21, 2022 (1) Reports all, or any part, of the “bodily injury” or “property damage” to us or any other insurer; (2) Receives a written or verbal demand or claim for damages because of the “bodily injury” or “property damage”; or (3) Becomes aware by any other means that “bodily injury” or “property damage” has occurred or has begun to occur. * * * Additionally, policy form CG 00 01 12 07, contains paragraph 2. Exclusions, which states in part: 2. Exclusions This insurance does not apply to: * * * b. Contractual Liability "Bodily injury" or "property damage" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) That the insured would have in the absence of the contract or agreement; or (2) Assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an "insured contract", reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury" or "property damage", provided: (a) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract"; and (b) Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. * * * j. Damage To Property RAD Communications, Inc.