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Kenneth N. Greenfield, Esq. (State Bar No. 10~7
Alexandra N. Selfridge, Esq. (State Bar No. 247063)
LAW OFFICES OF
KENNETH N. GREENFIELD
16516 BERNARDO CENTERDRIVE, SUITE 210
SAN DIEGO, CA 92128
(858)675-0301
FAX (858) 67 5-0319
5
Attorneys for Defendant, WAWANESA GENERAL INSURANCE COMPANY
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 GEORGE MARDIKIAN, ) Lead Case No. CIV 517132
) Consolidated with Case No. CIV 526757
Plaintiff, )
12 ) DEFENDANT WAWANESA GENERAL
vs. )
INSURANCE COMPANY'S NOTICE
13
OF MOTION AND MOTION FOR
) SUMMARYJUDGMENT OR,
WAWANESA GENERAL INSURANCE IN THE
) ALTERNATIVE,FOR SUMMARY
14 COMPANY, a corporation, and DOES 1 ) ADJUDICATIONAS TO THE
through 50, inclusive, ) COMPLAINT OF PLAINTIFF LILLIAN
15
) MARDIKIAN
16 Defendants )
) Filed Concurrentlv with:
Defendant 's Memo of Pd'cAs; Separate
17 )
)
Statement; Decls. ofSelfridge, Marlar,
Cescolini, and 8'ood; Notice ofLodgment;
18
19
)
)
and (Proposed j Order
) DATE: September 10, 2014
20 ) TIME: 9:00 a.m.
) DEPT: Law and Motion
21 ) Date Filed: October 3, 2012
) Trial Date: October 14, 2014
22
)
23 TO PLAINTIFF LILLIANMARDIKIANAND TO HER ATTORNEY OF RECORD:
24 PLEASE TAKE NOTICE that on September 2014 at 9:00 or soon thereafter
10, a.m., as
as counsel may be heard in the Law and Motion Department of the above-entitled Court, located
at 400 County Center, Redwood City, California 94063-1655, Defendant Wawanesa General
Insurance Company ("Wawanesa") will, and hereby does, move the Court for an order granting
summary judgment of all claims asserted by Plaintiff, Lillian Mardikian, and against Defendant,
NOTICE OF MOTION AND MOTION FOR MSJ OR, IN TICE ALTERNATIVE,MSA
Wawanesa General Insurance Company, and costs of suit incurred herein. The motion is made on
the grounds that the action has no merit, there is no triable issue of material fact, and Defendant is
3 entitled to judgment as a matter of law because Lillian Mardikian was never entitled to coverage
4 under the relevant insurance policy for the underlying loss, and her request for coverage was,
therefore, properly denied. In the alternative, Wawanesa will, and hereby does, move the Court
for an order granting summary adjudication in favor of Defendant, Wawanesa General Insurance
Company, and against Plaintiff, Lillian Mardikian, as follows:
Summary Adjudication No. 1: There is no merit to the second cause of
action for breach of the Implied Covenant of
10 Good Faith and Fair Dealing because there
was never any coverage for the loss and
12
because there was a Genuine Dispute as to
Pl
a ~~ 13 whether there was coverage for the loss.
ee
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14 Summary Adjudication No. 2: There is no merit to Plaintiffs claim for
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15
punitive damages because Plaintiff fails to
Z
16
establish evidence that Defendant acted with
17
oppression, fraud or malice.
18 This motion and alternative motion are based on this Notice of Motion, the Separate
Statement of Undisputed Material Facts, the Memorandum of Points and Authorities,
Declarations of Alexandra N. Selfridge, H. Catherine Marlar, Steve Cescolini, and Douglas K.
Wood, Notice of Lodgment of Exhibits, and [Proposed] Order served and filed concurrently
herewith, upon the papers and records on file herein, and upon any other oral or documentary
evidence which the Court may properly consider at the hearing on this matter.
24 DATED: June o5, 2014 LAW OFFICES OF KENNETH N. GREENFIELD
25
26
KENNETH N. GREENFIELD,
27 ALEXANDRAN. SELFRIDGE
Attorneys for Defendant, WAWANESA
28 GENERAL INSURANCE COMPANY
2
NOTICE OF MOTION AND MOTION FOR MSJ OR, IN THE ALTERNATIVE,MSA
George Mardikian Case No. CIV 517132
v. Wawanesa General Insurance Company et al. (Consolidated with CIV 526757)
2
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
PROOF OF SERVICE
C.C.P. $ 1013a, C.R.C. 2.300, et seq.
STATE OF CALIFORNIA
7
8
COUNTY OF SAN DIEGO
I am employed in the aforesaid County, State of California. I am over the age of 18 years and not
a party to the within action; my business address is16516 Bernardo Center Drive, Suite 210, San Diego,
10 California 92128.
11 On June 25, 2014, I served the following document(s) described as
DEFENDANT WAWANESAGENERAL INSURANCE COMPANY'S NOTICE OF
MOTION AND MOTION FOR SUMMARYJUDGMENT OR, IN THE ALTERNATIVE,
13 FOR SUMMARY ADJUDICATIONAS TO THE COMPLAINT OF PLAINTIFF LILLIAN
MARDIKIAN
14
DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S
15 MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARYJUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARY
16 ADJUDICATIONAS TO THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
17 SEPARATE STATEMENT OF UNDISPUTED MATERIALFACTS IN SUPPORT OF
DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR
18 SUMMARYJUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARY
ADJUDICATION AS TO THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
19
DECLARATIONOF ALEXANDRAN. SELFRIDGE IN SUPPORT OF DEFENDANT
20 WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO
21 THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
DECLARATIONOF H. CATHERINE MARLARIN SUPPORT OF DEFENDANT
WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO
THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
DECLARATIONOF STEVE CESCOLINI IN SUPPORT OF DEFENDANT
WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY
26
JUDGMENT OR'N THE ALTERNATIVE'ORSUMMARY ADJUDICATIONAS TO
THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
27
Proof ot Service
DECLARATIONOF DOUGLAS K. WOOD IN SUPPORT OF DEFENDANT
WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO
2 THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S NOTICE OF
LODGMENT OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARYJUDGMENT
OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO THE
COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
[PROPOSED] ORDER GRANTING DEFENDANT WAWANESA GENERAL
INSURANCE COMPANY'S MOTION FOR SUMMARYJUDGMENT AS TO THE
7 COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN
8 on the interested parties in this action by:
[x] Placing the original x a true copy thereof, enclosed in a sealed envelope,
10 addressed as follows.
[ ] Facsimile transmission as stated below.
Counsel for Plaintiffs
Montie S. Day, Esq.
Day law Offices
13 1235 Casa Palermo Circle
Henderson, Nevada 89011-3144
14 T: (208) 280-3766
F: (800) 219-2901
15 msdavesa(Raol.corn
[x] BY FEDERAL EXPRESS OVERNIGHT DELIVERY. On the date stated above, I deposited
17
such documents in San Diego, California, in a box or other like facility regularly maintained by
FEDERAL EXPRESS for receipt of overnight deliveries, or delivered to an authorized courier or
18 driver authorized by the express service carrier to receive documents, in a sealed envelope or
package designated by said carrier for delivery, with delivery fees paid or provided for, addressed
19 to the person on whom it is to be served at the office address as last given by that person on any
20 document filed in the cause and served on the party making service.
21 [X] BY E-MAIL: to msdavesalaol.corn (Courtesy Copy Only).
[X] STATE: I declare under penalty of perjury under the laws of the State of California
23 that the above is true and correct.
24 Executed on June 25, 2014, at San Diego, California.
25
26
Jan rrero
27
Proof o(Service
Preview
Kenneth N. Greenfield, Esq. (State Bar No. 10~7 Alexandra N. Selfridge, Esq. (State Bar No. 247063) LAW OFFICES OF KENNETH N. GREENFIELD 16516 BERNARDO CENTERDRIVE, SUITE 210 SAN DIEGO, CA 92128 (858)675-0301 FAX (858) 67 5-0319 5 Attorneys for Defendant, WAWANESA GENERAL INSURANCE COMPANY 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 GEORGE MARDIKIAN, ) Lead Case No. CIV 517132 ) Consolidated with Case No. CIV 526757 Plaintiff, ) 12 ) DEFENDANT WAWANESA GENERAL vs. ) INSURANCE COMPANY'S NOTICE 13 OF MOTION AND MOTION FOR ) SUMMARYJUDGMENT OR, WAWANESA GENERAL INSURANCE IN THE ) ALTERNATIVE,FOR SUMMARY 14 COMPANY, a corporation, and DOES 1 ) ADJUDICATIONAS TO THE through 50, inclusive, ) COMPLAINT OF PLAINTIFF LILLIAN 15 ) MARDIKIAN 16 Defendants ) ) Filed Concurrentlv with: Defendant 's Memo of Pd'cAs; Separate 17 ) ) Statement; Decls. ofSelfridge, Marlar, Cescolini, and 8'ood; Notice ofLodgment; 18 19 ) ) and (Proposed j Order ) DATE: September 10, 2014 20 ) TIME: 9:00 a.m. ) DEPT: Law and Motion 21 ) Date Filed: October 3, 2012 ) Trial Date: October 14, 2014 22 ) 23 TO PLAINTIFF LILLIANMARDIKIANAND TO HER ATTORNEY OF RECORD: 24 PLEASE TAKE NOTICE that on September 2014 at 9:00 or soon thereafter 10, a.m., as as counsel may be heard in the Law and Motion Department of the above-entitled Court, located at 400 County Center, Redwood City, California 94063-1655, Defendant Wawanesa General Insurance Company ("Wawanesa") will, and hereby does, move the Court for an order granting summary judgment of all claims asserted by Plaintiff, Lillian Mardikian, and against Defendant, NOTICE OF MOTION AND MOTION FOR MSJ OR, IN TICE ALTERNATIVE,MSA Wawanesa General Insurance Company, and costs of suit incurred herein. The motion is made on the grounds that the action has no merit, there is no triable issue of material fact, and Defendant is 3 entitled to judgment as a matter of law because Lillian Mardikian was never entitled to coverage 4 under the relevant insurance policy for the underlying loss, and her request for coverage was, therefore, properly denied. In the alternative, Wawanesa will, and hereby does, move the Court for an order granting summary adjudication in favor of Defendant, Wawanesa General Insurance Company, and against Plaintiff, Lillian Mardikian, as follows: Summary Adjudication No. 1: There is no merit to the second cause of action for breach of the Implied Covenant of 10 Good Faith and Fair Dealing because there was never any coverage for the loss and 12 because there was a Genuine Dispute as to Pl a ~~ 13 whether there was coverage for the loss. ee P4 ()z ee 14 Summary Adjudication No. 2: There is no merit to Plaintiffs claim for O gg ee -Q w z 0 15 punitive damages because Plaintiff fails to Z 16 establish evidence that Defendant acted with 17 oppression, fraud or malice. 18 This motion and alternative motion are based on this Notice of Motion, the Separate Statement of Undisputed Material Facts, the Memorandum of Points and Authorities, Declarations of Alexandra N. Selfridge, H. Catherine Marlar, Steve Cescolini, and Douglas K. Wood, Notice of Lodgment of Exhibits, and [Proposed] Order served and filed concurrently herewith, upon the papers and records on file herein, and upon any other oral or documentary evidence which the Court may properly consider at the hearing on this matter. 24 DATED: June o5, 2014 LAW OFFICES OF KENNETH N. GREENFIELD 25 26 KENNETH N. GREENFIELD, 27 ALEXANDRAN. SELFRIDGE Attorneys for Defendant, WAWANESA 28 GENERAL INSURANCE COMPANY 2 NOTICE OF MOTION AND MOTION FOR MSJ OR, IN THE ALTERNATIVE,MSA George Mardikian Case No. CIV 517132 v. Wawanesa General Insurance Company et al. (Consolidated with CIV 526757) 2 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO PROOF OF SERVICE C.C.P. $ 1013a, C.R.C. 2.300, et seq. STATE OF CALIFORNIA 7 8 COUNTY OF SAN DIEGO I am employed in the aforesaid County, State of California. I am over the age of 18 years and not a party to the within action; my business address is16516 Bernardo Center Drive, Suite 210, San Diego, 10 California 92128. 11 On June 25, 2014, I served the following document(s) described as DEFENDANT WAWANESAGENERAL INSURANCE COMPANY'S NOTICE OF MOTION AND MOTION FOR SUMMARYJUDGMENT OR, IN THE ALTERNATIVE, 13 FOR SUMMARY ADJUDICATIONAS TO THE COMPLAINT OF PLAINTIFF LILLIAN MARDIKIAN 14 DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S 15 MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARYJUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARY 16 ADJUDICATIONAS TO THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN 17 SEPARATE STATEMENT OF UNDISPUTED MATERIALFACTS IN SUPPORT OF DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR 18 SUMMARYJUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARY ADJUDICATION AS TO THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN 19 DECLARATIONOF ALEXANDRAN. SELFRIDGE IN SUPPORT OF DEFENDANT 20 WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO 21 THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN DECLARATIONOF H. CATHERINE MARLARIN SUPPORT OF DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN DECLARATIONOF STEVE CESCOLINI IN SUPPORT OF DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY 26 JUDGMENT OR'N THE ALTERNATIVE'ORSUMMARY ADJUDICATIONAS TO THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN 27 Proof ot Service DECLARATIONOF DOUGLAS K. WOOD IN SUPPORT OF DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO 2 THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S NOTICE OF LODGMENT OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARYJUDGMENT OR, IN THE ALTERNATIVE,FOR SUMMARYADJUDICATIONAS TO THE COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN [PROPOSED] ORDER GRANTING DEFENDANT WAWANESA GENERAL INSURANCE COMPANY'S MOTION FOR SUMMARYJUDGMENT AS TO THE 7 COMPLAINT OF PLAINTIFF LILLIANMARDIKIAN 8 on the interested parties in this action by: [x] Placing the original x a true copy thereof, enclosed in a sealed envelope, 10 addressed as follows. [ ] Facsimile transmission as stated below. Counsel for Plaintiffs Montie S. Day, Esq. Day law Offices 13 1235 Casa Palermo Circle Henderson, Nevada 89011-3144 14 T: (208) 280-3766 F: (800) 219-2901 15 msdavesa(Raol.corn [x] BY FEDERAL EXPRESS OVERNIGHT DELIVERY. On the date stated above, I deposited 17 such documents in San Diego, California, in a box or other like facility regularly maintained by FEDERAL EXPRESS for receipt of overnight deliveries, or delivered to an authorized courier or 18 driver authorized by the express service carrier to receive documents, in a sealed envelope or package designated by said carrier for delivery, with delivery fees paid or provided for, addressed 19 to the person on whom it is to be served at the office address as last given by that person on any 20 document filed in the cause and served on the party making service. 21 [X] BY E-MAIL: to msdavesalaol.corn (Courtesy Copy Only). [X] STATE: I declare under penalty of perjury under the laws of the State of California 23 that the above is true and correct. 24 Executed on June 25, 2014, at San Diego, California. 25 26 Jan rrero 27 Proof o(Service