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1 DAY LAW OFFICES
Montie S. Day, ¹073327
2 Attorneys
1235 Casa
at Law
Palermo Circle
LED
IIA'raOdUNTY
3 Henderson, Nevada 89011
Tel: (208) 280-3766 CQ8201
4 Email: msdayesq@aol.corn
Q)e e8 rior Qourt
5 LAW OFFICES OF BRUCE P. ZELIS
Bruce P. Zelis, Attorney ¹ 75312 ap%PYCLERK
6 1943 First Avenue
Walnut Creek, CA 94597
7 Tel: (925) 943-6633
Email: zelis@att.net
8
Attorneys for Plaintiff George Mardikian
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
12
GEORGE MARDIKIAN, ) CASE NO. CIV 517132
13 ) DECLARATIONOF MONTIE S. DAY
Plaintiff, RE: MEET AND CONFER ON MOTION
14 FOR JUDGMENT ON THE PLEADING
vs. RE: AFFIRMATIVEDEFENSES AND
15 TO STRIKE EACH AFFIRMATIVE
WAWANESA GENERAL ) DEFENSE
16 INSURANCE COMPANY, a )
corporation, and DOES 1 through 50, ) Date: January 30, 2013
17 inclusive, ) Time: 9:00 a.m.
) Dept.: Law and Motion
18 Defendants. ) (Unlimited Jurisdiction)
) Filed: October 24, 2012
19
20 I, Montie S. Day, declare:
21 l. I am an attorney duly admitted to practice law in the State of California, with my
22 principal office now in Henderson, Nevada. I am over the age of 18, competent to testify
23 as to the matters set forth herein, and make this declaration upon personal knowledge.
24 2. Prior to filing the instant motion for judgment on the pleadings, and after
25 research, I prepared a detailed letter as a "meet and confer" letter for the defendant's counsel
26 setting forth the law with respect to the pleading requirements for affirmative defenses. I
27 have attached hereto a true copy of such letter as Exhibit A.
28
DECLARATIONOF MONTIE S. DAY RE MEET AND CONFER
3. On December 12, 2012, I received a telephone call from defendant's counsel, and
we engaged in a cordial discussion regarding the affirmative defenses. Ms. Sel&idge stated
that Wawanesa would agree to withdraw two of the affirmative defenses, but would not
withdraw the balance of the affirmative defenses. I asked for facts which would support the
affirmative defenses to be plead in the answer, but the defendants'ounsel's position was
that facts need not be plead to allege the affirmative defenses. For example, with respect to
the allegation that the plaintiffbreached the contract of insurance, I requested specifics as
to which terms were breach, how, etc., but no specific could be given. I stated that the one
attacking the plaintiffs complaint as not stating a cause of action is a question of law, and
10 the Court could rule upon such, and with respect to the &aud defense, I pointed out that not
only were facts to be pled, the facts had to be pled with specificity. No agreement was
12 reached, and I received a letter &om defendant's counsel shortly thereafter, a copy of which
13 is attached hereto as Exhibit B.
14 4. On December 14, 2012, I emailed and mailed a reply back to defendant's counsel
15 addressing further issues, and stating that I would file the instant motion. A true copy of the
16 letter is attached hereto as Exhibit C.
17 5. During the conversation with defendant's counsel, defendant's counsel did not cite
18 any legal authority for the proposition that Wawanesa could file and allege affirmative
19 defenses without pleading facts to support the defense, or any legal authority to rebut the
20 legal authority I had provided.
21 WHEREFORE, counsel have made a good faith attempt to resolve the issues set forth
22 in the instant motion before filing the motion with this Court.
23 I declare under the penalties of perjury under the laws of the State of California that
24 the foregoing is true and correct, and that I have executed this declaration on December 15,
25 2012 at Henderson, Nevada.
26
Montie S. Day, Att~ey
27
28
DECLARATIONOF MONTIE S. DAY RE MEET AND CONFER -2-
Day Law Offices
1235 Casa Palermo Circle
Henderson, Nevada $ 9011
Tel: (208) 280-3766
E-mail:msdayesqaol.corn
December 10, 2012
Ms. Alexandra N. Sel&idge, Attorney
Law Of5ces of Kenneth N. Greenfield
16516 Bernardo Center Drive, Suite 201
San Diego, CA 92128
Re: Mardikian v. Wawanesa General Insurance Company
Via Mail and Email
Dear Ms. Sel&idge:
I have ~gw'n this weekend reviewed your answer to the complaint, especially the
"af5zmative defenses". Considering the fact that Wawanesa appears intent on proceeding with
this litigation as opposed to a prompt resolution, I must address these affirmative defenses.
As it now stands, I simply do not believe that your af5rmative defenses are properly plead
and/or simply do not understand even some of the points you are attempting to raise. For
example, in af5rmative defense No. 14, you contend that the language you cite is an "exclusion"
&om the policy, but it actually states that there is coverage for a "newly acquired auto" by the
broadest coverage under the policy for any vehicle identified in the policy provided &om the
date the person becomes the owner of the vehicle ifthe insiired ask for coverage within thirty
days of becoming the owner, and ifit is a replacement vehicle, coverage is provided without the
insured even asking for such. I have a difncult tune in reading the section and coming to the
conclusion that irisurance for a newly acquired vehicle is "excluded" by such language.
I am familiar with the tactics of the automobile insurarice industry to abuse the judicial
process by &ivolously alleging a6innative defenses with the intent to vex and harass the
victim/clainuurts in order to drive up litigation costs. This tactic not only damages the
individual c>aimant, such as our client, but the judicial system and the taxpayers of the State of
California I know the courts are inclined to ignore this practice, but for judicial efficiency and
for my clients, I do not accept the practice. Ifthe Courts were more diligent in controlling the
abuses of the judicial process, the California Judicial System would be able to operate much
more effectively and efBciently to the benefit of the judicial system and the taxpayers of the
State of California, ie, the public. There is a solution, but before I file themotion to strike the
improperly plead defenses or for judgment on the plewlin~~, I always attempt to resolve the
matter.
You pie dings of afBrmative defenses are improper as you do not states facts
constituting the affirmative defenses nor to which cause of action the afIirmative defense
I EXHIBIT
A
Ms. Alexandra N. Sel&idge, Attorney
December 10, 2012
Page 2
purports to relate. Such tactics impede the effective use of the judicial system. The pleading is
totally inadequate and not properly plead pursuant to the requirements of pleadings. The
defenses are not only improperly pled, but are "sham" and &ivolous, and filed in bad faith with
the obvious purpose of vexing and harassing the plaintiff This letter is to provide you an
opportunity to amend the pleadings and/or to confer before I file a motion to strike what appears
to be affirmative defenses ineptly stated in the answer, including a motion for sanctions. You
may consider this letter as a "Meet and Confer" letter.
The intent is to deal with the legitimate legal disputes but the pleadings control, and
therefore I believe we must address these affirmative defenses.
California Code ofCivilProcedure Section 438 provides, in pertinent part:
"Section 438. Judgment on the pleadings
(a) As used in this section:
(1) "Complaint" includes a cross-complaint.
(2) "Plaintiff includes a cross-complainant.
(3) "Defendant" includes a cross-defendant.
(1) A party may move for judgment on the pleadings.
(c)
(1) The motion provided for in this section may only be made on one of the
following grounds:
(A) Ifthe moving party is a plaintiff, that the complaint states facts
suf5cient
to constitute a cause or causes of action against the defendant and the
answer does not state facts saf5cient to constitute a defense to the
complaint.
~~~
(2) The motion provided for in this section may be m~e as to either of the
following:
(A)...
(B) The entire answer or one or more of the af5rmative defenses set
forth in the answer.
t9
(emphasis added)
Ms. Alexandra N. Sel&idge, Attorney
December 10, 2012
Page 3
Accordingly, a plaintiffmay file the motion for the judgment on the pleadings as to one
or more of the affirmative defenses alone. A plaintiffcannot be held to have waived his rights to
move for a judgment on the pleadings with respect to the af5rmative defenses because he or she
did not demurrer to the answer. California Code of Civil Procedure Section 430.80 (Waiver o
objection by failure to object) specifically provides " (b) Ifthe party against whom an answer
has been filed fails to demur thereto, that party is deemed to have waived the objection unless it
is an objection that the answer does not state facts suf5cient to constitute a defense."
(emphasis added)
A motion for judgment on the pleadings may be made at any time up to and including
the time of trial, and may be made on the same grounds as a demurrer. Stoops v.Abbassi
(2002) 100 Cal. App.4th 644, 650 A motion for judgment on the pleadings performs the same
Smction as a general demurrer, and hence attacks only defects disclosed on the face of the
P leadings or by matters that can be judicially noticed. Cloud v. Northrop &umman Corp.
(1998) 67 C. A. 4th 995, 999.
An answer must state facts "as carefully and with as much detail as to facts" that are
Ieq uired for a complaint. FPI Development Inc. V. Nakashima P991) 231 C. A. 3d 367. It has
long been established by California law, as explained by Witkins, California Procedure 5(5th
Ed) Section, as follows:
"(b) [$ 1082) Method of Pleading.
(1) In General. An af5rmative defense must be pleaded in the same manner as ifthe
facts were set forth in a complaint. In other words, the general requirement of statiiig the
ultimate Sets applies and, where particularity in pleading is necessary in a complaint, it
is equally necessary in an affirmative defense involving the issue. (Bruck v. Tucker
(1871) 42 C. 346, 352; Greiss v. State Inv. 4 Ins. Co. (1893) 98 C. 241, 244, 33 P. 195;
Bradbury v. Higginson (1914) 167 C. 553,557,140 P. 254 [ifmatter set up is equitable
cause of action, answer must contain all averments essential to statement of cause of
action as such]; see 19B AmJur. P.P. Forms (2007 ed.),Pleading, $ 85 et seq.)
Witkins, California Procedure (Pleadings), Vol. 5, Section 1082, p. 515-515
In FPI Development, Inc., v. Nakashima, supra, the Court discussed the effect of
"defectively plead answers" at length. Similar to the defective stated affirmative defenses
presented herein, the answer in FPI Development consisted of "a general denial with a laundry
list of affirmative defenses stating essentially the name of a defense and that it bars recovery",
but was devoid of factual allegations. In its opinion, the court wrote,
"...we do not condone defective pleading of the kind that is before us. Had plaintiffs
chall'enged the defectively pled answer, our task would be far simpler."
Id. at 383.
Ms. Alexandra N. Sel&idge, Attorney
December 10, 2012
Page 4
The Court went on to analyze the defendants'ecitation of affinnative defenses:
"The Allegations of Af5rmative Defense Put No Facts in Issue
That brings us to the allegations of new rnatter. Numerous defenses were purportedly
raised by defendants'llegations of affirmative defense. Most of these allegations fail to
state a defense even when liberally construed in defendants'avor. (See Eagle Oil d'c Ref.
Co. v. Prentice (1942) 19 Cal.2d 553, 560 [122 P.2d 264J.) Some are simply immaterial.
...All of the allegations are proffered in the form of terse legal conclusions, rather than as
facts "aveaed as carefully and with as much detail as the facts which constitute the cause
of action and are alleged in the complaint." (See Pomeroy, Code Remedies, supra, f 563,
at p. 917,) The only affirmative defenses that are mentioned in the m~~~~ judgment
proceedings, &aud in the inducement and failure of consideration, are not well pled,
consisting of legal conclusions, and would not have survived a demurrer. (See e.g.,
Metropolis etc.Sav. Bank v. Monnier (1915) 169 Cal. 592, 596[147 P.
Riegel v. Wollenshlager (1 920) 49 Cal App. 300, 301-302 [193 P. 160$ .)"
265'Metropolis);
Id. at 384.
In this instant action, none of the alleged affirmative defenses state suffIcient ultimate
facts establishing any valid defense. The alleged "af5rnuLtive defenses" are nothing more than
"boilerplate" and "shotgun" theories, conclusion, or legal theories, and are devoid of meaningful
facts. I must admit that you have come up with some &ivolous defense that I have never seen
before even in the automobile insurance industry.
The major problem is that the af5rmative defenses do not state facts sufficient to state
an afBrmative defense by stating the "facts" with particularity to show any affirmative defense.
The California Code ofCivilProcedure requires that the "facts" be pled, not merely conclusion
or ultimate conclusions, and that the af5rmation defenses actually be stated in the proper order
with respect to the cause of action to which they relate. Fraud, where plead, must be plead
with specificity..
I must also point out that you may be sanctioned by refusing to withdraw the appropriate
defenses. However, I willnot address herein the issue of sanctions under Code ofCivil
Procedure Section 128. 7 until you have made a decision whether to withdraw the affirmative
defenses and file an amended answer without the sham defenses.
Accordingly, unless you withdraw all affirmative defenses within fourteen (14) days of
the date of this letter,I may proceed with the appropriate motion or motions. I know perhaps
after years of the utilization of such tactics on behalf of the automobile insurance industry you
may have had
Ms. Alexandra N. Sel&idge, Attorney
December 10, 2012
Page 5
success with these with non-diligent counsel for the plaintiffas a result of this tactic, but as you
likely know I, on behalf of my clients, do not condone such tactics. I, like the justices in the
Court of Appeals in FPI Developement Inc. V. Nahuhima P991) 231 C. A. 3d 367, do not
condone such tactics or find it amusing.
As you know, I am an advocate for my clients. I respect your insured rights to litigate
the issues, but not the bad faith tactics and/or the abuse of the judicial process by the insurance
industry. Ifyou wish to discuss the matter, you know you can call me.
Thank you for your consideration,
Sincerely yours,
C
Montie S. Day
cc: Mr. Mardikian
LAW OFFICES OF
KENNETH N. GREENFIELD
16515 BERNARDO CENTER DRIVE. SUITE210
SAN DIEGO, CALIFORNIA 92128
www.lhegreentleldlawtlrm.corn
KENNEIH N. GREENFIELD TEL (858) 675-0301
ALEXANDRAN. SELFRIDGE 61 5 0319
FAX: (858)
JANICE Y. WALSHOK
set ttdgeelhegreenBetdlawllnn.corn
Undo G. Relner-Legal Assistant
Jan D. Guener~egal
Assistant
December 12, 2012
Via E-Mail and U.S. Mail
Montie S. Day, Esq.
Day Law Offices
1235 Casa Palermo Circle
Henderson, Nevada 89011
Re: George Mardikian v. Wawanesa General Insurance Comoanv
San Mateo County Superior Court Case No. CIV 517132
Insured: George Mardikian
Claim No.: 908551
DOL: February 20, 2012
Dear Montie,
This serves to respond to your December 10, 2012 correspondence, as well as to confirm
our telephone conversation of today's date.
Contrary to your accusations, Defendant has not pleaded its affirmative defenses in an
effort to vex and harass your client, or to drive up litigation costs. In fact, in an effort to avoid
what we consider to be a &ivolous motion, we have agreed to dismiss Defendant's Sixth
Affirmative Defense (Lack of Consideration) aud Twelfth Affirmative Defense (Laches). It is
our understanding, however, that unless Wawanesa dismisses each and every one of its
affirmative defenses, you will move forward with filing a Motion for Judgment on the Pleadings
with respect to Wawanesa's Answer. We cannot comply with your demand.
Although Plaintiff apparently takes issue with all of Defendant's affirmative defenses,
your correspondence only specifically references Wawanesa's Fourteenth Affirmative Defense.
That defense states, in essence, that there is no coverage for PlaintifFs claim under the "newly
acquired auto" provision of the relevant insurance policy. As you and I discussed today, there is
no coverage under that provision because Plaintiff failed to add his vehicle to the policy within
the required 30 days. In addition, the subject vehicle was not a replacement vehicle. These facts
have also been pleaded in the Answer itself. (Answer, p. 2, tt8 t"Defendant admits that Section
L, Paragraph 2(c) of the relevant policy of insurance provides that "Comprehensive Coverage for
a 'newly acquired auto'egins on the date you become the owner," but only if the insured
requests that Defendant insure the vehicle within 30 days of becoming the owner. Defendant
denies that coverage of any kind for the Vehicle began on February 14, 2012, or at all.
Defendant denies that 'On February 22, 2012, plaintiff gave notice to Wawanesa of the
acquisition of the Vehicle as a 'replacement'ehicle...'"] emphasis added.) The facts in the
Answer support Wawanesa's Fourteenth Affirmative Defense. EXHIBIT
Montie S. Day, Esq.
Mardiidan v. Wawanesa
December 12, 2012
Page 2
We remain willing to discuss the informal resolution of this issue; however, ifyou file a
Motion for Judgment on the Pleadings, we will oppose it. Thank you for your professional
courtesy and cooperation in this matter.
Very truly yours,
LAW OFFICES OF
KENNETH N. GREENFIELD
By: Js
ALEXANDRAN. SELFRIDGE
ANS/jdg
cc: Client
Day Law Offices
1235 Casa Palermo Circle
Headerson, Nevada 89011
Tel: (208) 280-3766
E-mail:msdayesqaol.corn
December 14, 2012
Ms. Alexandra N. Sel&idge, Attorney
Law CNBces of Kenneth N. Greenfield
16516 Bernardo Center Drive, Suite 201
San Diego, CA 92128
Re: Mardikian v. Wawanesa General Insurance Company
Via Mail and Email
Dear Ms. Sel&idge:
This is in response to our telephone conversation of December 12, 2012 and the issues
regarding the af5rmative defenses. This is also in response to your letter of December 12, 2012
which you stated you were sending to me, and I do apgeeciate the written confirmation of your
position.
With respect to your position on the affirmative defenses, you indicated that, while you
were willingto withdraw the Sixth Af5zmative Defenses (Lack of Consideration) and the
Twelfth Af5rmative Defense (Laches), you believe that you and your client have a right to claim
the other af5rmative defenses without pleading facts to support the defenses and that specific
facts need not be plead. As I pointed out to you, the First AfBrmative Defense (whether the
complaint states a cause of action) is a question of law and is subject to the Motion for
Judgment on the Pleadings, and there are no facts plead with respect to the balance of the
af5rmative defenses, including even the Fifteenth Af5rmative Defense based upon &aud and
misrepresentation by plaintifK As I stated, &aud must be plead with a high degree of specificity.
We reviewed the defense of "Unclean Hands", the "Doctrine of Waiver", etc., and all your
response was that you have the right to allege such defenses without facts. You were unable to
cite any authority which provides the "insurance company" any special privilege or special
status to support such a theory. Yet, in my letter to you, I provided you actual case authority that
you and Wawanesa do not have such a privilege to merely allege conclusion because you and
Wawanesa believe the insurance company has such a right. I note that in your letter you
confirm the position that you have such a right to maintain such defenses without pleading the
facts for such a defense, but absent &om your letter is any legal authority.
Accordingly, I have no option but to assume that the legal authority which I provided
you will control the pleadings, and willmove forward with the motion for judgment on the 14,
pleadings.
I EXHIBIT
Ms. Alexandra N. Sel&idge, Attorney
December 14, 2012
Page 2
We did, however, discuss the affirmative defense you attempted to set forth as
Af5nnative Defense No. 14, and you stated you position in the letter. I understand that your
position is that the vehicle was acquired on the date that an agreement was made to purchase the
vehicle, not on the date that he acquired possession of the vehicle via the written terms of the
agreement as expressed in the contract as "F.O.B. Lansing, MF'. However, that is not an
"af6rmative defense" by the language, even ifany facts had been plead. The recital of a
provision of a contract alone is not an affirmative defense."
From this language alone, you have stated that an af5rmative defense is contained
somewhere therein. You indicated that Wawanesa's coverage counsel now has come up with a
new theory or idea as to why there is no coverage, but you elect not to disclose such reasons,
which is troubliag considering that Wawanesa had an af5rmative duty to disclosure in writing
the basis upon which it denied the claim of Mr. Mardikian, and apparently elected to do so by
Mr. Wood's letter to Mr. Mardikian. As you know, Title 10, Code ofRegulations, Section
2695. 7 states, in part:
$ 2695.7. Standards for Pmmpt, Fair and Equitable Settlements
(a)-
(b) Upon receiving proof of claun, every insurer, except as specified in subsection
2695.7(b)(4) below, shall immediately, but in no event more than forty (40) calendar
days later, accept or deny the claim, in whole or in part. The amounts accepted or denied
shall be clearly documented in the claim file unless the claim has been denied in its
entirety.
(1) Where an insurer denies or rejects a first party cl«III-. in whole or in
part, it shall do so in writing and shall provide to the claimant a statement
listing all bases for such reiection or. denial and the factual and lenal bases
for each reason mven for such reiection or denial which is then within the
insurer's kaowledee. Where an insurer's denial of a first party ~laim, in
whole or in part, is based on a specific statute, appIcable law or policy
provision, condition or exclusion, the written denial shall include reference
thereto and provide an explanation of the application of the statute,
applicable law or provision, condition or exclusion to the claim. Every insurer
that denies or rejects a third party claim, in whole or in part, or disputes liability
or ~~ages shall do so in writing.
(emphasis added)
Ms. Alexandra N. Selfridge, Attorney
December 14, 2012
Page 3
Obviously, Wawanesa General Insurance Company is bound by such regulations, and
the continuing bad faith of Wawanesa General Insurance Company is noted to have continued
even after this litigation was fIled.
Notwithstanding, even ifWawanesa's counsel now reads the contract with a difFerent
understanding than it based its denial upon (as stated in Mr. Wood's letter),such is irrelevant.
You have also stated that you understand how I read and understand the policy as providing
coverage (though you disagree with my rwb~g and understanding of the policy). The fact is
that neither your reading of the policy, Mr. Wood's reading and understanding of the policy, or
some "expert" on insurance policies, are relevant. Any reasonable doubt as to uncertain
lanipaage willbe resolved against the insurer whether that doubt relates to the peril insured
again< or other relevant matters. Continental Cas. Co. v. Phoenh Constr. Co. (1956) 46
Cal.2nd 423, 437-438. The policy should be read as a layman would read it and not as it
might be analyzed by an attorney or an insurance expert. Hobson v. Mutual Benejit H. &
A. Assn. (1950) 99 Cal. App.2nd 330, 333; Crane v.State Farm Fire & Cas Co. (1971) 5
Cal.3d 112, 115, Brinkmann v. Liberty Mutual etc. Ins. Co. (1965) 63 Cal.2nd 41, 45.
Given this, any continued ridiculous and/or warped understanding by some irmrance
coverage attorney is likely irrelevant, but the question is how the layman would read the policy.
Obviously, ifwe cannot agree, and you acknowledge that you see how I am reerlIn~ the policy,
there is an ambiguity, and Wawanesa is obligated to act in good faith with respect to the insured
and continues its bad faith conduct even in this litigation proceeding.
With respect to the motion for judgment on the pleadings, I invite you to provide me
legal authority that supports your theory that you and Wawanesa may continue to maI~tain the
af5rmative defenses without compliance with the statutes and case authority I have provided
you with respect to this issue. In the meantime, I willproceed with the motion for j~~ent on
the pleadings.
Montie S. Day
Preview
1 DAY LAW OFFICES Montie S. Day, ¹073327 2 Attorneys 1235 Casa at Law Palermo Circle LED IIA'raOdUNTY 3 Henderson, Nevada 89011 Tel: (208) 280-3766 CQ8201 4 Email: msdayesq@aol.corn Q)e e8 rior Qourt 5 LAW OFFICES OF BRUCE P. ZELIS Bruce P. Zelis, Attorney ¹ 75312 ap%PYCLERK 6 1943 First Avenue Walnut Creek, CA 94597 7 Tel: (925) 943-6633 Email: zelis@att.net 8 Attorneys for Plaintiff George Mardikian 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 12 GEORGE MARDIKIAN, ) CASE NO. CIV 517132 13 ) DECLARATIONOF MONTIE S. DAY Plaintiff, RE: MEET AND CONFER ON MOTION 14 FOR JUDGMENT ON THE PLEADING vs. RE: AFFIRMATIVEDEFENSES AND 15 TO STRIKE EACH AFFIRMATIVE WAWANESA GENERAL ) DEFENSE 16 INSURANCE COMPANY, a ) corporation, and DOES 1 through 50, ) Date: January 30, 2013 17 inclusive, ) Time: 9:00 a.m. ) Dept.: Law and Motion 18 Defendants. ) (Unlimited Jurisdiction) ) Filed: October 24, 2012 19 20 I, Montie S. Day, declare: 21 l. I am an attorney duly admitted to practice law in the State of California, with my 22 principal office now in Henderson, Nevada. I am over the age of 18, competent to testify 23 as to the matters set forth herein, and make this declaration upon personal knowledge. 24 2. Prior to filing the instant motion for judgment on the pleadings, and after 25 research, I prepared a detailed letter as a "meet and confer" letter for the defendant's counsel 26 setting forth the law with respect to the pleading requirements for affirmative defenses. I 27 have attached hereto a true copy of such letter as Exhibit A. 28 DECLARATIONOF MONTIE S. DAY RE MEET AND CONFER 3. On December 12, 2012, I received a telephone call from defendant's counsel, and we engaged in a cordial discussion regarding the affirmative defenses. Ms. Sel&idge stated that Wawanesa would agree to withdraw two of the affirmative defenses, but would not withdraw the balance of the affirmative defenses. I asked for facts which would support the affirmative defenses to be plead in the answer, but the defendants'ounsel's position was that facts need not be plead to allege the affirmative defenses. For example, with respect to the allegation that the plaintiffbreached the contract of insurance, I requested specifics as to which terms were breach, how, etc., but no specific could be given. I stated that the one attacking the plaintiffs complaint as not stating a cause of action is a question of law, and 10 the Court could rule upon such, and with respect to the &aud defense, I pointed out that not only were facts to be pled, the facts had to be pled with specificity. No agreement was 12 reached, and I received a letter &om defendant's counsel shortly thereafter, a copy of which 13 is attached hereto as Exhibit B. 14 4. On December 14, 2012, I emailed and mailed a reply back to defendant's counsel 15 addressing further issues, and stating that I would file the instant motion. A true copy of the 16 letter is attached hereto as Exhibit C. 17 5. During the conversation with defendant's counsel, defendant's counsel did not cite 18 any legal authority for the proposition that Wawanesa could file and allege affirmative 19 defenses without pleading facts to support the defense, or any legal authority to rebut the 20 legal authority I had provided. 21 WHEREFORE, counsel have made a good faith attempt to resolve the issues set forth 22 in the instant motion before filing the motion with this Court. 23 I declare under the penalties of perjury under the laws of the State of California that 24 the foregoing is true and correct, and that I have executed this declaration on December 15, 25 2012 at Henderson, Nevada. 26 Montie S. Day, Att~ey 27 28 DECLARATIONOF MONTIE S. DAY RE MEET AND CONFER -2- Day Law Offices 1235 Casa Palermo Circle Henderson, Nevada $ 9011 Tel: (208) 280-3766 E-mail:msdayesqaol.corn December 10, 2012 Ms. Alexandra N. Sel&idge, Attorney Law Of5ces of Kenneth N. Greenfield 16516 Bernardo Center Drive, Suite 201 San Diego, CA 92128 Re: Mardikian v. Wawanesa General Insurance Company Via Mail and Email Dear Ms. Sel&idge: I have ~gw'n this weekend reviewed your answer to the complaint, especially the "af5zmative defenses". Considering the fact that Wawanesa appears intent on proceeding with this litigation as opposed to a prompt resolution, I must address these affirmative defenses. As it now stands, I simply do not believe that your af5rmative defenses are properly plead and/or simply do not understand even some of the points you are attempting to raise. For example, in af5rmative defense No. 14, you contend that the language you cite is an "exclusion" &om the policy, but it actually states that there is coverage for a "newly acquired auto" by the broadest coverage under the policy for any vehicle identified in the policy provided &om the date the person becomes the owner of the vehicle ifthe insiired ask for coverage within thirty days of becoming the owner, and ifit is a replacement vehicle, coverage is provided without the insured even asking for such. I have a difncult tune in reading the section and coming to the conclusion that irisurance for a newly acquired vehicle is "excluded" by such language. I am familiar with the tactics of the automobile insurarice industry to abuse the judicial process by &ivolously alleging a6innative defenses with the intent to vex and harass the victim/clainuurts in order to drive up litigation costs. This tactic not only damages the individual c>aimant, such as our client, but the judicial system and the taxpayers of the State of California I know the courts are inclined to ignore this practice, but for judicial efficiency and for my clients, I do not accept the practice. Ifthe Courts were more diligent in controlling the abuses of the judicial process, the California Judicial System would be able to operate much more effectively and efBciently to the benefit of the judicial system and the taxpayers of the State of California, ie, the public. There is a solution, but before I file themotion to strike the improperly plead defenses or for judgment on the plewlin~~, I always attempt to resolve the matter. You pie dings of afBrmative defenses are improper as you do not states facts constituting the affirmative defenses nor to which cause of action the afIirmative defense I EXHIBIT A Ms. Alexandra N. Sel&idge, Attorney December 10, 2012 Page 2 purports to relate. Such tactics impede the effective use of the judicial system. The pleading is totally inadequate and not properly plead pursuant to the requirements of pleadings. The defenses are not only improperly pled, but are "sham" and &ivolous, and filed in bad faith with the obvious purpose of vexing and harassing the plaintiff This letter is to provide you an opportunity to amend the pleadings and/or to confer before I file a motion to strike what appears to be affirmative defenses ineptly stated in the answer, including a motion for sanctions. You may consider this letter as a "Meet and Confer" letter. The intent is to deal with the legitimate legal disputes but the pleadings control, and therefore I believe we must address these affirmative defenses. California Code ofCivilProcedure Section 438 provides, in pertinent part: "Section 438. Judgment on the pleadings (a) As used in this section: (1) "Complaint" includes a cross-complaint. (2) "Plaintiff includes a cross-complainant. (3) "Defendant" includes a cross-defendant. (1) A party may move for judgment on the pleadings. (c) (1) The motion provided for in this section may only be made on one of the following grounds: (A) Ifthe moving party is a plaintiff, that the complaint states facts suf5cient to constitute a cause or causes of action against the defendant and the answer does not state facts saf5cient to constitute a defense to the complaint. ~~~ (2) The motion provided for in this section may be m~e as to either of the following: (A)... (B) The entire answer or one or more of the af5rmative defenses set forth in the answer. t9 (emphasis added) Ms. Alexandra N. Sel&idge, Attorney December 10, 2012 Page 3 Accordingly, a plaintiffmay file the motion for the judgment on the pleadings as to one or more of the affirmative defenses alone. A plaintiffcannot be held to have waived his rights to move for a judgment on the pleadings with respect to the af5rmative defenses because he or she did not demurrer to the answer. California Code of Civil Procedure Section 430.80 (Waiver o objection by failure to object) specifically provides " (b) Ifthe party against whom an answer has been filed fails to demur thereto, that party is deemed to have waived the objection unless it is an objection that the answer does not state facts suf5cient to constitute a defense." (emphasis added) A motion for judgment on the pleadings may be made at any time up to and including the time of trial, and may be made on the same grounds as a demurrer. Stoops v.Abbassi (2002) 100 Cal. App.4th 644, 650 A motion for judgment on the pleadings performs the same Smction as a general demurrer, and hence attacks only defects disclosed on the face of the P leadings or by matters that can be judicially noticed. Cloud v. Northrop &umman Corp. (1998) 67 C. A. 4th 995, 999. An answer must state facts "as carefully and with as much detail as to facts" that are Ieq uired for a complaint. FPI Development Inc. V. Nakashima P991) 231 C. A. 3d 367. It has long been established by California law, as explained by Witkins, California Procedure 5(5th Ed) Section, as follows: "(b) [$ 1082) Method of Pleading. (1) In General. An af5rmative defense must be pleaded in the same manner as ifthe facts were set forth in a complaint. In other words, the general requirement of statiiig the ultimate Sets applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue. (Bruck v. Tucker (1871) 42 C. 346, 352; Greiss v. State Inv. 4 Ins. Co. (1893) 98 C. 241, 244, 33 P. 195; Bradbury v. Higginson (1914) 167 C. 553,557,140 P. 254 [ifmatter set up is equitable cause of action, answer must contain all averments essential to statement of cause of action as such]; see 19B AmJur. P.P. Forms (2007 ed.),Pleading, $ 85 et seq.) Witkins, California Procedure (Pleadings), Vol. 5, Section 1082, p. 515-515 In FPI Development, Inc., v. Nakashima, supra, the Court discussed the effect of "defectively plead answers" at length. Similar to the defective stated affirmative defenses presented herein, the answer in FPI Development consisted of "a general denial with a laundry list of affirmative defenses stating essentially the name of a defense and that it bars recovery", but was devoid of factual allegations. In its opinion, the court wrote, "...we do not condone defective pleading of the kind that is before us. Had plaintiffs chall'enged the defectively pled answer, our task would be far simpler." Id. at 383. Ms. Alexandra N. Sel&idge, Attorney December 10, 2012 Page 4 The Court went on to analyze the defendants'ecitation of affinnative defenses: "The Allegations of Af5rmative Defense Put No Facts in Issue That brings us to the allegations of new rnatter. Numerous defenses were purportedly raised by defendants'llegations of affirmative defense. Most of these allegations fail to state a defense even when liberally construed in defendants'avor. (See Eagle Oil d'c Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 560 [122 P.2d 264J.) Some are simply immaterial. ...All of the allegations are proffered in the form of terse legal conclusions, rather than as facts "aveaed as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint." (See Pomeroy, Code Remedies, supra, f 563, at p. 917,) The only affirmative defenses that are mentioned in the m~~~~ judgment proceedings, &aud in the inducement and failure of consideration, are not well pled, consisting of legal conclusions, and would not have survived a demurrer. (See e.g., Metropolis etc.Sav. Bank v. Monnier (1915) 169 Cal. 592, 596[147 P. Riegel v. Wollenshlager (1 920) 49 Cal App. 300, 301-302 [193 P. 160$ .)" 265'Metropolis); Id. at 384. In this instant action, none of the alleged affirmative defenses state suffIcient ultimate facts establishing any valid defense. The alleged "af5rnuLtive defenses" are nothing more than "boilerplate" and "shotgun" theories, conclusion, or legal theories, and are devoid of meaningful facts. I must admit that you have come up with some &ivolous defense that I have never seen before even in the automobile insurance industry. The major problem is that the af5rmative defenses do not state facts sufficient to state an afBrmative defense by stating the "facts" with particularity to show any affirmative defense. The California Code ofCivilProcedure requires that the "facts" be pled, not merely conclusion or ultimate conclusions, and that the af5rmation defenses actually be stated in the proper order with respect to the cause of action to which they relate. Fraud, where plead, must be plead with specificity.. I must also point out that you may be sanctioned by refusing to withdraw the appropriate defenses. However, I willnot address herein the issue of sanctions under Code ofCivil Procedure Section 128. 7 until you have made a decision whether to withdraw the affirmative defenses and file an amended answer without the sham defenses. Accordingly, unless you withdraw all affirmative defenses within fourteen (14) days of the date of this letter,I may proceed with the appropriate motion or motions. I know perhaps after years of the utilization of such tactics on behalf of the automobile insurance industry you may have had Ms. Alexandra N. Sel&idge, Attorney December 10, 2012 Page 5 success with these with non-diligent counsel for the plaintiffas a result of this tactic, but as you likely know I, on behalf of my clients, do not condone such tactics. I, like the justices in the Court of Appeals in FPI Developement Inc. V. Nahuhima P991) 231 C. A. 3d 367, do not condone such tactics or find it amusing. As you know, I am an advocate for my clients. I respect your insured rights to litigate the issues, but not the bad faith tactics and/or the abuse of the judicial process by the insurance industry. Ifyou wish to discuss the matter, you know you can call me. Thank you for your consideration, Sincerely yours, C Montie S. Day cc: Mr. Mardikian LAW OFFICES OF KENNETH N. GREENFIELD 16515 BERNARDO CENTER DRIVE. SUITE210 SAN DIEGO, CALIFORNIA 92128 www.lhegreentleldlawtlrm.corn KENNEIH N. GREENFIELD TEL (858) 675-0301 ALEXANDRAN. SELFRIDGE 61 5 0319 FAX: (858) JANICE Y. WALSHOK set ttdgeelhegreenBetdlawllnn.corn Undo G. Relner-Legal Assistant Jan D. Guener~egal Assistant December 12, 2012 Via E-Mail and U.S. Mail Montie S. Day, Esq. Day Law Offices 1235 Casa Palermo Circle Henderson, Nevada 89011 Re: George Mardikian v. Wawanesa General Insurance Comoanv San Mateo County Superior Court Case No. CIV 517132 Insured: George Mardikian Claim No.: 908551 DOL: February 20, 2012 Dear Montie, This serves to respond to your December 10, 2012 correspondence, as well as to confirm our telephone conversation of today's date. Contrary to your accusations, Defendant has not pleaded its affirmative defenses in an effort to vex and harass your client, or to drive up litigation costs. In fact, in an effort to avoid what we consider to be a &ivolous motion, we have agreed to dismiss Defendant's Sixth Affirmative Defense (Lack of Consideration) aud Twelfth Affirmative Defense (Laches). It is our understanding, however, that unless Wawanesa dismisses each and every one of its affirmative defenses, you will move forward with filing a Motion for Judgment on the Pleadings with respect to Wawanesa's Answer. We cannot comply with your demand. Although Plaintiff apparently takes issue with all of Defendant's affirmative defenses, your correspondence only specifically references Wawanesa's Fourteenth Affirmative Defense. That defense states, in essence, that there is no coverage for PlaintifFs claim under the "newly acquired auto" provision of the relevant insurance policy. As you and I discussed today, there is no coverage under that provision because Plaintiff failed to add his vehicle to the policy within the required 30 days. In addition, the subject vehicle was not a replacement vehicle. These facts have also been pleaded in the Answer itself. (Answer, p. 2, tt8 t"Defendant admits that Section L, Paragraph 2(c) of the relevant policy of insurance provides that "Comprehensive Coverage for a 'newly acquired auto'egins on the date you become the owner," but only if the insured requests that Defendant insure the vehicle within 30 days of becoming the owner. Defendant denies that coverage of any kind for the Vehicle began on February 14, 2012, or at all. Defendant denies that 'On February 22, 2012, plaintiff gave notice to Wawanesa of the acquisition of the Vehicle as a 'replacement'ehicle...'"] emphasis added.) The facts in the Answer support Wawanesa's Fourteenth Affirmative Defense. EXHIBIT Montie S. Day, Esq. Mardiidan v. Wawanesa December 12, 2012 Page 2 We remain willing to discuss the informal resolution of this issue; however, ifyou file a Motion for Judgment on the Pleadings, we will oppose it. Thank you for your professional courtesy and cooperation in this matter. Very truly yours, LAW OFFICES OF KENNETH N. GREENFIELD By: Js ALEXANDRAN. SELFRIDGE ANS/jdg cc: Client Day Law Offices 1235 Casa Palermo Circle Headerson, Nevada 89011 Tel: (208) 280-3766 E-mail:msdayesqaol.corn December 14, 2012 Ms. Alexandra N. Sel&idge, Attorney Law CNBces of Kenneth N. Greenfield 16516 Bernardo Center Drive, Suite 201 San Diego, CA 92128 Re: Mardikian v. Wawanesa General Insurance Company Via Mail and Email Dear Ms. Sel&idge: This is in response to our telephone conversation of December 12, 2012 and the issues regarding the af5rmative defenses. This is also in response to your letter of December 12, 2012 which you stated you were sending to me, and I do apgeeciate the written confirmation of your position. With respect to your position on the affirmative defenses, you indicated that, while you were willingto withdraw the Sixth Af5zmative Defenses (Lack of Consideration) and the Twelfth Af5rmative Defense (Laches), you believe that you and your client have a right to claim the other af5rmative defenses without pleading facts to support the defenses and that specific facts need not be plead. As I pointed out to you, the First AfBrmative Defense (whether the complaint states a cause of action) is a question of law and is subject to the Motion for Judgment on the Pleadings, and there are no facts plead with respect to the balance of the af5rmative defenses, including even the Fifteenth Af5rmative Defense based upon &aud and misrepresentation by plaintifK As I stated, &aud must be plead with a high degree of specificity. We reviewed the defense of "Unclean Hands", the "Doctrine of Waiver", etc., and all your response was that you have the right to allege such defenses without facts. You were unable to cite any authority which provides the "insurance company" any special privilege or special status to support such a theory. Yet, in my letter to you, I provided you actual case authority that you and Wawanesa do not have such a privilege to merely allege conclusion because you and Wawanesa believe the insurance company has such a right. I note that in your letter you confirm the position that you have such a right to maintain such defenses without pleading the facts for such a defense, but absent &om your letter is any legal authority. Accordingly, I have no option but to assume that the legal authority which I provided you will control the pleadings, and willmove forward with the motion for judgment on the 14, pleadings. I EXHIBIT Ms. Alexandra N. Sel&idge, Attorney December 14, 2012 Page 2 We did, however, discuss the affirmative defense you attempted to set forth as Af5nnative Defense No. 14, and you stated you position in the letter. I understand that your position is that the vehicle was acquired on the date that an agreement was made to purchase the vehicle, not on the date that he acquired possession of the vehicle via the written terms of the agreement as expressed in the contract as "F.O.B. Lansing, MF'. However, that is not an "af6rmative defense" by the language, even ifany facts had been plead. The recital of a provision of a contract alone is not an affirmative defense." From this language alone, you have stated that an af5rmative defense is contained somewhere therein. You indicated that Wawanesa's coverage counsel now has come up with a new theory or idea as to why there is no coverage, but you elect not to disclose such reasons, which is troubliag considering that Wawanesa had an af5rmative duty to disclosure in writing the basis upon which it denied the claim of Mr. Mardikian, and apparently elected to do so by Mr. Wood's letter to Mr. Mardikian. As you know, Title 10, Code ofRegulations, Section 2695. 7 states, in part: $ 2695.7. Standards for Pmmpt, Fair and Equitable Settlements (a)- (b) Upon receiving proof of claun, every insurer, except as specified in subsection 2695.7(b)(4) below, shall immediately, but in no event more than forty (40) calendar days later, accept or deny the claim, in whole or in part. The amounts accepted or denied shall be clearly documented in the claim file unless the claim has been denied in its entirety. (1) Where an insurer denies or rejects a first party cl«III-. in whole or in part, it shall do so in writing and shall provide to the claimant a statement listing all bases for such reiection or. denial and the factual and lenal bases for each reason mven for such reiection or denial which is then within the insurer's kaowledee. Where an insurer's denial of a first party ~laim, in whole or in part, is based on a specific statute, appIcable law or policy provision, condition or exclusion, the written denial shall include reference thereto and provide an explanation of the application of the statute, applicable law or provision, condition or exclusion to the claim. Every insurer that denies or rejects a third party claim, in whole or in part, or disputes liability or ~~ages shall do so in writing. (emphasis added) Ms. Alexandra N. Selfridge, Attorney December 14, 2012 Page 3 Obviously, Wawanesa General Insurance Company is bound by such regulations, and the continuing bad faith of Wawanesa General Insurance Company is noted to have continued even after this litigation was fIled. Notwithstanding, even ifWawanesa's counsel now reads the contract with a difFerent understanding than it based its denial upon (as stated in Mr. Wood's letter),such is irrelevant. You have also stated that you understand how I read and understand the policy as providing coverage (though you disagree with my rwb~g and understanding of the policy). The fact is that neither your reading of the policy, Mr. Wood's reading and understanding of the policy, or some "expert" on insurance policies, are relevant. Any reasonable doubt as to uncertain lanipaage willbe resolved against the insurer whether that doubt relates to the peril insured again< or other relevant matters. Continental Cas. Co. v. Phoenh Constr. Co. (1956) 46 Cal.2nd 423, 437-438. The policy should be read as a layman would read it and not as it might be analyzed by an attorney or an insurance expert. Hobson v. Mutual Benejit H. & A. Assn. (1950) 99 Cal. App.2nd 330, 333; Crane v.State Farm Fire & Cas Co. (1971) 5 Cal.3d 112, 115, Brinkmann v. Liberty Mutual etc. Ins. Co. (1965) 63 Cal.2nd 41, 45. Given this, any continued ridiculous and/or warped understanding by some irmrance coverage attorney is likely irrelevant, but the question is how the layman would read the policy. Obviously, ifwe cannot agree, and you acknowledge that you see how I am reerlIn~ the policy, there is an ambiguity, and Wawanesa is obligated to act in good faith with respect to the insured and continues its bad faith conduct even in this litigation proceeding. With respect to the motion for judgment on the pleadings, I invite you to provide me legal authority that supports your theory that you and Wawanesa may continue to maI~tain the af5rmative defenses without compliance with the statutes and case authority I have provided you with respect to this issue. In the meantime, I willproceed with the motion for j~~ent on the pleadings. Montie S. Day