Preview
1 DAY LAW OFFICES
Montie S. Day, ¹073327
2 Attorneys at Law
1235 Casa Palermo Circle
3
4
Henderson,
Tel: (208)
Nevada
280-3766
Email: msdayesq@aol.corn
89011
FILE9
SAN MATEO COUNTY
2 8 Zrj14
5 Attorney for George Mardlkian
and Lillian Mardikian
6
V~
Ch, 7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10
11 LILLIANMARDIKIAN, ) LEAD CASE NO. CIV 517132
(Consolidated with Case No. CIV 526757)
12 Plaintiff, PLAINTIFF'S RESPONSE TO DEFENDANT'S
) SEPARATE STATEMENT OF FACTS AND
13 vs. ) ADDITIONALFACTS IN OPPOSITION TO
) MOTION FOR SUMMARYJUDGMENT
14 WAWANESA GENERAL ) AND/OR SUMMARYADJUDICATION
INSURANCE COMPANY, a )
15 corporation, and DOES 1 through )
50, ) Date: September 10, 2014
16 inclusive, ) Time: 9:00 a.m.
) Dept: Law and Motion
17 Defendants. )
) Filed: Feb. 13, 2014
(UNLIMITEDJURISDICTION)
19 Plaintiff Lillian Mardikian in this breach of contract and bad faith action against
20 Wawanesa General Insurance Company submits the followmg response to defendant's
21 statement of alleged undisputed facts and furthermore submits the following statement of
22 undisputed facts in response to the defendant's motion for summary judgment and/or
23 summary adjudication.
24
25 RESPONSE TO STATEMENT OF DISPUTED/UNDISPUTABLE FACTS
26
27
28
RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS
A. MOTION FOR SUMMARYJUDGMENT TO ENTIRE COMPLAINT
DEFENDANT'S ALLEGED UNDISPUTED PLAINTIFF'S RESPONSE AND
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
1. In August of2005, PlaintiffGeorge Mardikian 1. Disputed.
("Mr. Mardikian") first filled out an application
for an insurance policy with Defendant Wawanesa General Insurance Company filled
Wawanesa General Insurance Company out much of the application and additional
("Defendant" or "Wawanesa"). writings and/or markings were added after the
document was signed.
Suoportine Evidence: Supporting Evidence: Declaration of George
Mardikian, Para. 22.A.
Decl. Alexandra Selfridge, ltd 3 and 4; Exhibit 1,
June 10, 2014 Deposition Transcript of George
Mardikian, p. 1.5, Exhibit 2, Underwriting
10 Application, pp. 2.1-2.2.
11
2 In August of 2005, Mr Mardikian hved 2. Undisputed
with his mother, PlaintiffLillian Mardikian
]2 ("Ms. Mardikian"), and his father.
13
Supportinii Evidence:
14 Decl. Selfridge, $$ 3 and 5; Exhibit 1, p. 1.5;
Exhibit 2, p. 2.1; Exhibit 3, Plaintiff Lillian
15 Mardikian's Complamt, 3.2.
p.
16
3 By way of the "Application for 3. Disputed
17 Automobile Policy," Mr. Mardikian sought
18
insurance for four automobiles. This was a "Family Combination Auto Policy"
which was intended to cover the "Family"
19 Supporting Evidence: automobiles and the drivers within the family.
Decl. Selfridge, ltd 3 and 4, Exhibit 1, p. 1 5; Supporting Evidence: Declaration of George
20 Exhibit 2, p. 2.1. Mardikian, Para. 22.B, Declaration of Lillian
21
Mardikian, Para. 3.
22 4. Mr. Mardikian was to be the principal driver 4. Disputed: The term "principal driver" was
23
of three of the cars, while Ms. Mardikian was never discussed by or used by any insured, nor
to be the principal driver of one. is the term defined in the policy.
24 Supporting Evidence: Declaration of George
Suvportine Evidence: Mardikian, Para. 22 C.
25 Decl. Selfridge, 3 and 4; Exhibit 1, p. 1.5;
tttt
Exhibit 2, p. 2.1.
26
27
28
RESPONSE TO STATEMENT OF FACTS/STATEMEN fOF FACTS -2-
5. In the "Applicant's Statement" section of 5. Disputed
the Application for Automobile Policy,
Question No. 10 asked, "Is vehicle owned by First, it is not ascertained who filled out the
3 someone other than Applicant, Spouse or section of the application, when it was filled
Mortgagee?" Mr. Mardikian responded, "no" out, and whether it was an employee of
with respect to each of the four vehicles for Wawanesa General Insurance Company.
which he sought insurance. Second, because Lillian Mardikian had an
interest in the vehicle, she may be considered a
6 Supportine Evidence. "Mortgagee".
Decl. Selfridge, tttt3 and 4; Exhibit 1, p. 1.5; Supporting Evidence: Declaration of George
Exhibit 2, p. 2 l. Mardikian, Para. 22 D.
Declaration of Lillian Mardikian, Para 3
6. Mr. Mardikian signed the insurance 6. Disputed
application on August 17, 2005, declaring that
"the answers to the questions and the statements The quote is incomplete. This sentence of the
11 made by me on this application are true and Application goes on to clearly state "and I
complete and request the company, in reliance declare that the company may recompute the
upon them to issue the policy of insurance premium or return ALLMONIES PAID ifmy
applied for. answers to the questions and my statements are
13
not substantially true" (emphasis added).
14 Supporting Evidence: Wawanesa has not returned all monies paid and
Decl Selfridge, tt) 3 and 4; Exhibit 1, p. 1.5; has refused to do so. Furthermore, the
Exhibit 2, p. 2.2. Application as it exists in the exhibit is NOT
the same document as existing at the time Mr.
16
Mardikian signed the document, as markings
17 and additions were made after he signature.
Supporting Evidence: Declaration of George
18 Mardikian, Para. 22.E.
19
7. Wawanesa issued insurance policy number 7. Disputed.
6734314 (the "Policy" ).
21
The policy number is FA6734314, with the
Supporting Evidence: "FA'" to indicate it is a "Family Combination
Decl. Steve Cescolini, $ 4; Exhibit 4, the Policy. Auto Policy".
Supporting Evidence See Declaration ofGeorge
23 Mardikian, Para 22.F.
24
25
26
27
28
EESPONSE TO STATEMI!NTOF FACTS/STATEMENT OF FACTS
8. The pertinent provisions of the Policy are as 8. Disputed.
follows:
Ms. Mardikian was not provided a copy of the
DEFINITIONS policy, and furthermore, it isnot known ifthis
quote is from a "personal policy" or a "Family
A. Throughout this policy "you" and "your" Combination Auto Policy" which was to be
4 issued.
refer to the "named insured" on the Policy
Declarations; and Supporting Evidence: Declaration of Lillian
Mardikian, Para 3 Declaration of George
1. The spouse, or Mardikian, Para. 22.G
2. A person who is a registered domestic
partner under California law withthe "named
insured";
8
ifa resident of the same household.
~ ~ ~
9
l0 F. "Family member" means a person
related to you by blood, mamage, registered
domestic partnership under California law or
adoption who is a resident of your household.
This includes a ward or foster child.
l3 ~ ~ ~
l4 J. "Your covered auto" means:
1. Any vehicle shown in the Declarations.
2. A "newly acquired auto".
l7 ~ ~ ~
l8 L. "Newly acquired auto":
l9 1. "Newly acquired auto" means any ofthe
following types of vehicles you become the
20 owner of during the policy period
a. A private passenger auto;
~ ~ ~
PART III
23
COVERAGE FOR DAMAGE
24 TO YOUR AUTO
25 COVERAGE D —COMPREHENSIVE
~ ~ ~
27
28
RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS 4
1
Pil SURING AGREEMKNT
A. We will pay for direct and accidental
loss to "'your covered auto" or any "non-owned
4 auto", including their "equipment", minus any
applicable deductible shown in the Declarations.
5
6
Supportinp Evidence: Decl. Cescolini, $ 4;
Exhibit 4, pp. 4.6-4.7 and 4.12.
8
9. Mr. Mardikian and Ms. Mardikian were both 9. Undisputed.
9 listed drivers on the Policy.
Supportina Evidence:
Decl. Cescolini, $ 4; Exhibit 4, p 4.2.
10. Mr. Mardikian was the only "named 10. Disputed.
insured" on the Policy Declarations.
13
Ms. Mardikian was also named as an insured
Supporting Evidence: on the Policy Declaration. (See Declaration
Decl. Cescolini, $ 4; Exhibit 4, pp. 4.1-4.2. Page as attached to the defendant's Lodging of
15 Exhibits, Exhibit 4); Declaration of George
Mardikian, Para. 22 H.
16
11. Ms Mardikian is Mr. Mardikian's mother, 11. Undisputed only as to the fact that Ms.
not his spouse or domestic partner. Mardikian is the mother of George E.
Mardikian
19 Sunnortina Evidence:
Decl. Selfridge, $ 5, Exhibit 3, p. 3.2 at $ 1.
20
2] 12. Mr. Mardikian began searching for a 1964 12. Disputed.
Cadillac Eldorado to purchase as a surprise
gift for his parents. The vehicle was to be a "family vehicle" and a
'urprise to his parents with the intent to be as a
23
Supportina Evidence: "family vehicle." It was never intended as a
24 Decl. Wood, $ 4; Exhibit 5, pp. 5.4-5.6; Decl. gift solely to his mother or father.
Selfridge, $ 6; Exhibit 6, p. 6.2 at lines 2-7. Supporting Evidence: Declaration of George
25 Mardikian, Para. 22.I.
27
RESPONSE TO STATEMFNT OF FACTS/STATEMENT OF FACTS -5-
13. Mr. Mardikian was eventually able to 13 Undisputed only as to the date the vehicle
locate such a vehicle in Lansing, Michigan. He was picked up for shipping (February 14, 2012
- transfer of possession and ownership).
paid for the car and parts that were sold along Additional charges were paid on other dates.
with it in December of 2011. He paid for The transaction was, however, one transaction.
shipping of the Eldorado on January 27, 2012.
The vehicle was picked up for shipping on
February 14, 2012.
Supporting Evidence:
Decl. Selfridge, gtt 5and 6; Exhibit 6, p. 6.2 at
line 11; p. 6.3 at lines 17-20 and 2Z-24; p. 6.4
at lines 2-3; Exhibit 3, p. 3.7, lines 7 and 20.
14. On February 20, 2012, the Eldorado caught 14. Undisputed
9 on fire during transport.
10
Supporting Evidence:
11 Decl. Selfridge, $ 5; Exhibit 3, p. 3.8 at $ 11.
12
13
15. As a result of the fire, Mr. Mardikian was 15. Disputed.
never able to present the Eldorado to his
parents. The vehicle was symbolically "presented" to
14
Mr. George E. Mardikian's parents on
Evidence: Valentine's Day, February 14, 2012.
15 Supporting
Supporting Evidence: Declaration of George
Decl. Wood, $ 4; Exhibit 5, pp. 5.4-5.6.
Mardikian, Para. 22.I, Para. 17; Declaration of
16
Lillian Mardikian, Para. 4-5.
17
16. As of her June 10, 2014 deposition, Ms. 16. Disputed
18 Mardikian had never seen the Eldorado.
The vehicle was symbolically "presented" to
19
Supporting Evidence: Mr. George E Mardikian's parents on
Decl. Exhibit of
Valentine's Day, February 14, 2012. At such
20 Selfridge, $ 7; 7, Deposition time, George E. Mardikian and his parents
Lillian Mardikian, p. 7.9. shared the photographs of the vehicle. Thus,
21 Ms. Mardikian did "see" the vehicle at that
time, although its physical presence was still
22 outside California.
Supporting Evidence: Declaration of George
23 Mardikian, Para. 22.K, Para. 17.
24
17. As of her June 10, 2014 deposition, Ms. 17. Objection: Irrelevant
25 Mardikian had not been provided with the
keys to the Eldorado.
26
Supporting Evidence:
27 Decl. Selfridge, $ 7; Exhibit 7, p. 7.10.
RESPONSE TO STATEMENT OF FACTSISTATEMENT OF FACTS -6-
18. As of her June 10, 2014 deposition, Mr. 18. Objection: Irrelevant
Mardikian had not presented Ms. Mardikian
with any document stating that he was giving
the car to her.
3
Supporting Evidence:
Decl. Selfridge, $ 7; Exhibit 7, pp. 7.7-7.8 and
7.15.
6
19. As of her June 10, 2014 deposition, Ms. 19. Disputed.
7 Mardikian did not know where the Eldorado Ms. Mardikian had access to the Vehicle at any
was being stored, and did not have access to the time she desired.
vehicle. Supporting Evidence:Declaration of George
Mardikian, Para. 19; Declaration of Lillian
9
Supporting Evidence: Mardikian, Para. 7, and Exhibit C thereto.
Decl. Selfridge, $ 7; Exhibit 7, p. 7.11-7.14.
]2 20. On November 14, 2013, Ms. Mardikian 20. Undisputed
made a written demand to Wawanesa to
provide her with coverage for the fire loss to
the Eldorado.
Supporting Evidence:
Decl. Selfridge, $ 5; Exhibit 3, pp. 3.40-3.41.
16
21. Wawanesa forwarded Ms. Mardikian's 21. Undisputed only for purposes of this
letter to counsel for a coverage opinion. Motion for Summary Judgment.
18 No documents or communications have been
Supporting Evidence: provided which prove Wawanesa forwarded
9
Declaration of H. Catherine Marlar, $ 4; Decl. the letter to counsel for a coverage opinion.
20 Wood, $ 5.
23
24
26
RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS
B. MOTION FOR SUMMARYADJUDICATIONTO SECOND CAUSE OF ACTION
(BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING)
DEFENDANT' ALLEGED UNDISPUTED PLAINTIFF'S RESPONSE AND
MATERIALFACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
22. In August of 2005, Mr. Mardikian first 22. Disputed.
filled out an application for an insurance
policy with Wawanesa. Wawanesa General Insurance Company filled
out much of the application and additional
Supportine Evidence: writings and/or markings were added after the
Decl. Alexandra Sel fridge, tttt 3 and4; Exhibit 1, document was signed.
June 10, 2014 Deposition Transcript of George Supporting Evidence: Declaration of George
10
Mardikian, p. 1 .5; Exhibit 2, Underwriting Mardikian, Para 22.A.
Application, pp. 2.1-2 2.
12
23. In August of 2005, Mr. Mardikian lived 23 Undisputed
13 with his mother and his father.
14 Supportinq Fvidence:
15
Decl. Selfridge, gtt 3 and 5; Exhibit 1, p. 1.5;
Exhibit 2, p. 2.1; Exhibit 3, Plaintiff Lillian
Mardikian's Complaint, p. 3.2.
17
24. By way of the "Application for 24. Disputed
18 Automobile Policy," Mr. Mardikian sought
insurance for four automobiles. This was a "Family Combination Auto Policy"
19 "Family"
which was mtended to cover the
20 Supportinv. Evidence: automobiles and the drivers within the family
Decl. Selfridge, tttt3 and 4; Exhibit 1, p 1.5; Supporting Evidence: Declaration of George
21 Exhibit 2, p. 2. 1~ Mardikian, Para. 22.B., Declaration of Lillian
Mardikian, Para. 3
22
23 25 ~ Mr. Mardikian was to be the principal 25. Disputed.
driver of. three of the cars, while Ms. Mardikian
24 was to be the principal driver of one. The term "principal driver" was never
25 discussed by or used by any insured, nor is the
SupportinL Evidence: term defined.
26 Decl. Selfridge, and
tttt 3 4; Exhibit 1, p. 1.5; Supporting Evidence: Declaration of George
Exhibit 2, p. 2.1 ~ Mardikian, Para. 22.C
27
28
RESPONSE TO STATEMEN'r OF fACTS/STATEMENT OF FACTS
26. In the "Applicant's Statement" section of 26. Disputed
the Application for Automobile Policy,
Question No. 10 asked, "Is vehicle owned by First, it is not ascertained who filled out the
3 someone other than Applicant, Spouse or section of the application, when it was filled
Mortgagee?" Mr. Mardikian responded, "no" out, and whether it was an employee of
with respect to each of the four vehicles for Wawanesa General Insurance Company.
which he sought insurance. Second, because Lillian Mardikian had an
interest in the vehicle, she may be considered a
6 Supportine Evidence: "Mortgagee".
Decl. Selfridge, )tt 3 and 4; Exhibit 1, p. 1.5; Supporting Evidence: Declaration of George
Exhibit 2, p. 2.1. Mardikian, Para. 22.D.; Declaration of Lillian
Mardikian, Para. 3.
27. Mr. Mardikian signed the insurance 27. Disputed
application on August 17, 2005, declaring that
10
"the answers to the questions and the statements The quote is incomplete. This sentence of the
made by me on this application are true and Application goes on to clearly state "and I
complete and request the company, in reliance declare that the company may recompute the
12 upon them to issue the policy of insurance premium or return ALLMONIES PAID if
applied for...." my answers to the questions and my
13
statements are not substantially true"
Supportine Evidence: (emphasis added). Wawanesa has not returned
Decl. Sel&idge, tttt3 and 4; Exhibit 1, p. 1.5; all monies paid and has refused to do so.
Exhibit 2, p. 2.2. Furthermore, the Application as it exists in the
exhibit is NOT the same document as existing
at the time Mr. Mardikian signed the
17 document, as markings and additions were
made after his signature.
Supporting Evidence: Declaration of George
Mardikian, Para. 22.E.
19
28. Wawanesa issued the policy(No 6734314). 28. Disputed:
21
Suoportina Evidence: The policy number is FA6734314, with the
Decl. Steve Cescolini, $ 4; Exhibit 4, the Policy. "FA" to indicate it is a "Family Combination
Auto Policy".
23 Supporting Evidence: Declaration of George
Mardikian, Para. 22.F.
25
26
27
28
RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS
29. The pertinent provisions ofthe Policy are as 29. Disputed
follows:
Ms. Mardikian was not provided a copy of the
DEFINITIONS policy, and furthermore, it is not known ifthis
A. Throughout this policy "you" and "your" quote is &om a "personal policy" or a "Family
4 Combination Auto Policy" which was to be
refer to the "named insured" on the Policy
Declarations; and issued.
Supporting Evidence: Declaration of Lillian
1. The spouse, or Mardikian, Para. 3. Declaration of George
2. A person who is a registered domestic Mardikian, Para. 22.G
partner under California law with the "named
Insured, ifa resident of the same household.
e ~~
8
F. "Family member" means a person
related to you by blood, marriage, registered
10 domestic partnership under California law or
adoption who is a resident of your household.
1 1,
This includes a ward or foster child.
12
J. "Your covered auto" means:
14 1. Any vehicle shown in the Declarations.
2. A "newly acquired auto".
~~ ~
L. "Newly acquired auto":
18 1. "Newly acquired auto" means any ofthe
following types of vehicles you become the
owner of during the policy period:
20 a. A private passenger auto;
21 ~ ~ ~
PART III
22
COVERAGE FOR DAMAGE
23 TO YOUR AUTO
24 COVERAGE 9 —COMPREHENSIVE
25 ro ~
26 INSURING AGREEMKNT
2'7 A. %'e will pay for direct and accidental
loss to "your covered auto" or any "non-
28
RESPONSE TO STATEMEN'r OF rACTS/STATEMENT OF FACTS
owned auto", including their "equipment",
minus any applicable deductible shown in the
Declarations....
3
Supportina Evidence: Decl. Cescolini, $ 4;
Exhibit 4, pp. 4.6-4.7 and 4.12.
5
30. Mr. Mardikian and Ms. Mardikian were 30. Undisputed.
both listed drivers on the Policy.
7
Supportine Evidence:
8 Decl. Cescolini, $ 4; Exhibit 4, p 4.2.
9
31. Mr. Mardikian was the only "named 31. Disputed.
10 insured" on the Policy Declarations.
Ms. Mardikian was also named as an insured
Supportine Evidence: on the Policy Declaration. (See Declaration
Decl. Cescolini, $ 4; Exhibit 4, pp. 4.1-4.2. Page as attached to the defendant's Lodging of
Exhibits, Exhibit 4); Declaration of George
Mardikian, Para. 22.H.
14
32. Ms Mardikian is Mr. Mardikian's mother, 32. Undisputed only as to the fact that Ms.
15 not his spouse or domestic partner. Mardikian is the mother of George E.
Mardikian.
Supoorting Evidence:
Decl. Selfridge, $ 5; Exhibit 3, p. 3.2 at $ 1.
33. Mr. Mardikian began searching for a 1964 33. Disputed.
Cadillac Eldorado to purchase as a surprise
gift for his parents. The vehicle was to be a "family vehicle" and a
20 surprise to his parents with the intent to be as
Supporting Evidence: a "family vehicle." It was never intended as a
Decl. Wood, $ 4; Exhibit 5, pp. 5.4-5.6; Decl. gift solely to his mother or father.
Selfridge, $ 6; Exhibit 6, p. 6.2 at lines 2-7. Supporting Evidence: Declaration of George
Mardikian, Para. 22.I
23
24
34. Mr. Mardikian was eventually able to 34. Undisputed only as to the date the vehicle
25 ~
locate such a vehicle in Lansing, Michigan. He was picked up for shipping (February 14, 2012
paid for the car and parts that were sold along - transfer of possession and ownership).
with it in December of 2011, He paid for Additional charges were paid on other dates.
shipping of fhe Eldorado on January 27, 2012. The transaction was, however, one transaction
The vehicle was picked up for shipping on
28 February 14, 2012.
zesiomsc >o smvavsNr or: rAcrs~srAreMem or rAcrs - 11-
Supportine Evidence:
Decl. Selfridge, tt) 5and 6; Exhibit 6, p6.2 at
line 11;p. 6.3 at lines 17-20 and 22-24,p. 6.4 at
line 2-3, Exhibit 3 p 3 .7 line 7 & 20.
3
4 ~
35. On February 20, 2012, the Eldorado 35. Undisputed
caught on fire during transport.
5
Supportine Evidence:
Decl. Sel fridge, tt 5; Exhibit 3, p. 3.8 at tt11.
8 36. As a result of the fire, Mr. Mardikian was 36 Disputed.
never able to present the Eldorado to his
9 parents. The vehicle was symbolically "presented" to
Mr. George E. Mardikian's parents on
Suoportinv. Evidence. Valentine's Day, February 14, 2012.
Supportmg Evidence: Declaration of George
Decl. Wood, tt 4; Exhibit 5, pp. 5 4-5.6.
Mardikian, Para 17, Declaration of Lillian
Mardikian, Para. 4-5
12
37. On June 1„2012, Wawanesa took Mr. 37. Disputed
Mardikian's Examination Under Oath. Mr. Mr. Mardikian surprised
Mardikian testified
his parents with the
that he intended to give his
parents the Eldorado as a surprise gift, pictures of the Vehicle, on Valentine's Day,
sometime in the future, but never actually did February 14, 2012. (The word "future" refers
so. back to the earlier day when the vehicle was
16
located for purchase, and as to such date,
SupportinL F vidence: February 14,2012 was the "future".)
17 Decl. Wood, tt 4;Exhibit 5, pp. 5.4-5.6. Supporting Evidence. Declaration of George
Mardikian, Para. 16
18
19 38 On November 14, 2013, Ms. Mardikian 38 Undisputed
made a written demand to Wawanesa to provide
20, her with coverage for the fire loss to the
Eldorado.
22 Supportmg Evidence:
Decl. Selfridge, tt 5;Exhibit 3, pp 3.40-3.41
23
24
25
26
'7
28
RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS -12-
39. Wawanesa forwarded Ms. Mardikian's 39. Undisputed only for purposes of this
letter to counsel for a coverage opinion. Motion for Summary Judgment.
No documents or communications have been
3 Supportinv. Evidence: provided which prove Wawanesa forwarded
Declaration of H. Catherine Marlar, $ 4; Decl. the letter to counsel for a coverage opinion.,
Wood, $ 5. and the defendants has not produced all the
communication between such counsel on the
5
basis of attorney-client privilege.
Objection: Relevance unless all documents are
produced as to communications between
counsel and the defendants.
40. Coverage counsel reviewed the demand, 40. Undisputed only for purposes of this
10
relevant claim file materials, supervised legal Motion for Summary Judgment.
research to be done regarding the coverage No documents or communications have been
issues presented, and reviewed the resulting provided which prove coverage counsel
research. performed these acts.
l2 Objection: Relevance unless all documents are
Supportina Evidence: produce
Preview
1 DAY LAW OFFICES Montie S. Day, ¹073327 2 Attorneys at Law 1235 Casa Palermo Circle 3 4 Henderson, Tel: (208) Nevada 280-3766 Email: msdayesq@aol.corn 89011 FILE9 SAN MATEO COUNTY 2 8 Zrj14 5 Attorney for George Mardlkian and Lillian Mardikian 6 V~ Ch, 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 LILLIANMARDIKIAN, ) LEAD CASE NO. CIV 517132 (Consolidated with Case No. CIV 526757) 12 Plaintiff, PLAINTIFF'S RESPONSE TO DEFENDANT'S ) SEPARATE STATEMENT OF FACTS AND 13 vs. ) ADDITIONALFACTS IN OPPOSITION TO ) MOTION FOR SUMMARYJUDGMENT 14 WAWANESA GENERAL ) AND/OR SUMMARYADJUDICATION INSURANCE COMPANY, a ) 15 corporation, and DOES 1 through ) 50, ) Date: September 10, 2014 16 inclusive, ) Time: 9:00 a.m. ) Dept: Law and Motion 17 Defendants. ) ) Filed: Feb. 13, 2014 (UNLIMITEDJURISDICTION) 19 Plaintiff Lillian Mardikian in this breach of contract and bad faith action against 20 Wawanesa General Insurance Company submits the followmg response to defendant's 21 statement of alleged undisputed facts and furthermore submits the following statement of 22 undisputed facts in response to the defendant's motion for summary judgment and/or 23 summary adjudication. 24 25 RESPONSE TO STATEMENT OF DISPUTED/UNDISPUTABLE FACTS 26 27 28 RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS A. MOTION FOR SUMMARYJUDGMENT TO ENTIRE COMPLAINT DEFENDANT'S ALLEGED UNDISPUTED PLAINTIFF'S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE EVIDENCE 1. In August of2005, PlaintiffGeorge Mardikian 1. Disputed. ("Mr. Mardikian") first filled out an application for an insurance policy with Defendant Wawanesa General Insurance Company filled Wawanesa General Insurance Company out much of the application and additional ("Defendant" or "Wawanesa"). writings and/or markings were added after the document was signed. Suoportine Evidence: Supporting Evidence: Declaration of George Mardikian, Para. 22.A. Decl. Alexandra Selfridge, ltd 3 and 4; Exhibit 1, June 10, 2014 Deposition Transcript of George Mardikian, p. 1.5, Exhibit 2, Underwriting 10 Application, pp. 2.1-2.2. 11 2 In August of 2005, Mr Mardikian hved 2. Undisputed with his mother, PlaintiffLillian Mardikian ]2 ("Ms. Mardikian"), and his father. 13 Supportinii Evidence: 14 Decl. Selfridge, $$ 3 and 5; Exhibit 1, p. 1.5; Exhibit 2, p. 2.1; Exhibit 3, Plaintiff Lillian 15 Mardikian's Complamt, 3.2. p. 16 3 By way of the "Application for 3. Disputed 17 Automobile Policy," Mr. Mardikian sought 18 insurance for four automobiles. This was a "Family Combination Auto Policy" which was intended to cover the "Family" 19 Supporting Evidence: automobiles and the drivers within the family. Decl. Selfridge, ltd 3 and 4, Exhibit 1, p. 1 5; Supporting Evidence: Declaration of George 20 Exhibit 2, p. 2.1. Mardikian, Para. 22.B, Declaration of Lillian 21 Mardikian, Para. 3. 22 4. Mr. Mardikian was to be the principal driver 4. Disputed: The term "principal driver" was 23 of three of the cars, while Ms. Mardikian was never discussed by or used by any insured, nor to be the principal driver of one. is the term defined in the policy. 24 Supporting Evidence: Declaration of George Suvportine Evidence: Mardikian, Para. 22 C. 25 Decl. Selfridge, 3 and 4; Exhibit 1, p. 1.5; tttt Exhibit 2, p. 2.1. 26 27 28 RESPONSE TO STATEMENT OF FACTS/STATEMEN fOF FACTS -2- 5. In the "Applicant's Statement" section of 5. Disputed the Application for Automobile Policy, Question No. 10 asked, "Is vehicle owned by First, it is not ascertained who filled out the 3 someone other than Applicant, Spouse or section of the application, when it was filled Mortgagee?" Mr. Mardikian responded, "no" out, and whether it was an employee of with respect to each of the four vehicles for Wawanesa General Insurance Company. which he sought insurance. Second, because Lillian Mardikian had an interest in the vehicle, she may be considered a 6 Supportine Evidence. "Mortgagee". Decl. Selfridge, tttt3 and 4; Exhibit 1, p. 1.5; Supporting Evidence: Declaration of George Exhibit 2, p. 2 l. Mardikian, Para. 22 D. Declaration of Lillian Mardikian, Para 3 6. Mr. Mardikian signed the insurance 6. Disputed application on August 17, 2005, declaring that "the answers to the questions and the statements The quote is incomplete. This sentence of the 11 made by me on this application are true and Application goes on to clearly state "and I complete and request the company, in reliance declare that the company may recompute the upon them to issue the policy of insurance premium or return ALLMONIES PAID ifmy applied for. answers to the questions and my statements are 13 not substantially true" (emphasis added). 14 Supporting Evidence: Wawanesa has not returned all monies paid and Decl Selfridge, tt) 3 and 4; Exhibit 1, p. 1.5; has refused to do so. Furthermore, the Exhibit 2, p. 2.2. Application as it exists in the exhibit is NOT the same document as existing at the time Mr. 16 Mardikian signed the document, as markings 17 and additions were made after he signature. Supporting Evidence: Declaration of George 18 Mardikian, Para. 22.E. 19 7. Wawanesa issued insurance policy number 7. Disputed. 6734314 (the "Policy" ). 21 The policy number is FA6734314, with the Supporting Evidence: "FA'" to indicate it is a "Family Combination Decl. Steve Cescolini, $ 4; Exhibit 4, the Policy. Auto Policy". Supporting Evidence See Declaration ofGeorge 23 Mardikian, Para 22.F. 24 25 26 27 28 EESPONSE TO STATEMI!NTOF FACTS/STATEMENT OF FACTS 8. The pertinent provisions of the Policy are as 8. Disputed. follows: Ms. Mardikian was not provided a copy of the DEFINITIONS policy, and furthermore, it isnot known ifthis quote is from a "personal policy" or a "Family A. Throughout this policy "you" and "your" Combination Auto Policy" which was to be 4 issued. refer to the "named insured" on the Policy Declarations; and Supporting Evidence: Declaration of Lillian Mardikian, Para 3 Declaration of George 1. The spouse, or Mardikian, Para. 22.G 2. A person who is a registered domestic partner under California law withthe "named insured"; 8 ifa resident of the same household. ~ ~ ~ 9 l0 F. "Family member" means a person related to you by blood, mamage, registered domestic partnership under California law or adoption who is a resident of your household. This includes a ward or foster child. l3 ~ ~ ~ l4 J. "Your covered auto" means: 1. Any vehicle shown in the Declarations. 2. A "newly acquired auto". l7 ~ ~ ~ l8 L. "Newly acquired auto": l9 1. "Newly acquired auto" means any ofthe following types of vehicles you become the 20 owner of during the policy period a. A private passenger auto; ~ ~ ~ PART III 23 COVERAGE FOR DAMAGE 24 TO YOUR AUTO 25 COVERAGE D —COMPREHENSIVE ~ ~ ~ 27 28 RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS 4 1 Pil SURING AGREEMKNT A. We will pay for direct and accidental loss to "'your covered auto" or any "non-owned 4 auto", including their "equipment", minus any applicable deductible shown in the Declarations. 5 6 Supportinp Evidence: Decl. Cescolini, $ 4; Exhibit 4, pp. 4.6-4.7 and 4.12. 8 9. Mr. Mardikian and Ms. Mardikian were both 9. Undisputed. 9 listed drivers on the Policy. Supportina Evidence: Decl. Cescolini, $ 4; Exhibit 4, p 4.2. 10. Mr. Mardikian was the only "named 10. Disputed. insured" on the Policy Declarations. 13 Ms. Mardikian was also named as an insured Supporting Evidence: on the Policy Declaration. (See Declaration Decl. Cescolini, $ 4; Exhibit 4, pp. 4.1-4.2. Page as attached to the defendant's Lodging of 15 Exhibits, Exhibit 4); Declaration of George Mardikian, Para. 22 H. 16 11. Ms Mardikian is Mr. Mardikian's mother, 11. Undisputed only as to the fact that Ms. not his spouse or domestic partner. Mardikian is the mother of George E. Mardikian 19 Sunnortina Evidence: Decl. Selfridge, $ 5, Exhibit 3, p. 3.2 at $ 1. 20 2] 12. Mr. Mardikian began searching for a 1964 12. Disputed. Cadillac Eldorado to purchase as a surprise gift for his parents. The vehicle was to be a "family vehicle" and a 'urprise to his parents with the intent to be as a 23 Supportina Evidence: "family vehicle." It was never intended as a 24 Decl. Wood, $ 4; Exhibit 5, pp. 5.4-5.6; Decl. gift solely to his mother or father. Selfridge, $ 6; Exhibit 6, p. 6.2 at lines 2-7. Supporting Evidence: Declaration of George 25 Mardikian, Para. 22.I. 27 RESPONSE TO STATEMFNT OF FACTS/STATEMENT OF FACTS -5- 13. Mr. Mardikian was eventually able to 13 Undisputed only as to the date the vehicle locate such a vehicle in Lansing, Michigan. He was picked up for shipping (February 14, 2012 - transfer of possession and ownership). paid for the car and parts that were sold along Additional charges were paid on other dates. with it in December of 2011. He paid for The transaction was, however, one transaction. shipping of the Eldorado on January 27, 2012. The vehicle was picked up for shipping on February 14, 2012. Supporting Evidence: Decl. Selfridge, gtt 5and 6; Exhibit 6, p. 6.2 at line 11; p. 6.3 at lines 17-20 and 2Z-24; p. 6.4 at lines 2-3; Exhibit 3, p. 3.7, lines 7 and 20. 14. On February 20, 2012, the Eldorado caught 14. Undisputed 9 on fire during transport. 10 Supporting Evidence: 11 Decl. Selfridge, $ 5; Exhibit 3, p. 3.8 at $ 11. 12 13 15. As a result of the fire, Mr. Mardikian was 15. Disputed. never able to present the Eldorado to his parents. The vehicle was symbolically "presented" to 14 Mr. George E. Mardikian's parents on Evidence: Valentine's Day, February 14, 2012. 15 Supporting Supporting Evidence: Declaration of George Decl. Wood, $ 4; Exhibit 5, pp. 5.4-5.6. Mardikian, Para. 22.I, Para. 17; Declaration of 16 Lillian Mardikian, Para. 4-5. 17 16. As of her June 10, 2014 deposition, Ms. 16. Disputed 18 Mardikian had never seen the Eldorado. The vehicle was symbolically "presented" to 19 Supporting Evidence: Mr. George E Mardikian's parents on Decl. Exhibit of Valentine's Day, February 14, 2012. At such 20 Selfridge, $ 7; 7, Deposition time, George E. Mardikian and his parents Lillian Mardikian, p. 7.9. shared the photographs of the vehicle. Thus, 21 Ms. Mardikian did "see" the vehicle at that time, although its physical presence was still 22 outside California. Supporting Evidence: Declaration of George 23 Mardikian, Para. 22.K, Para. 17. 24 17. As of her June 10, 2014 deposition, Ms. 17. Objection: Irrelevant 25 Mardikian had not been provided with the keys to the Eldorado. 26 Supporting Evidence: 27 Decl. Selfridge, $ 7; Exhibit 7, p. 7.10. RESPONSE TO STATEMENT OF FACTSISTATEMENT OF FACTS -6- 18. As of her June 10, 2014 deposition, Mr. 18. Objection: Irrelevant Mardikian had not presented Ms. Mardikian with any document stating that he was giving the car to her. 3 Supporting Evidence: Decl. Selfridge, $ 7; Exhibit 7, pp. 7.7-7.8 and 7.15. 6 19. As of her June 10, 2014 deposition, Ms. 19. Disputed. 7 Mardikian did not know where the Eldorado Ms. Mardikian had access to the Vehicle at any was being stored, and did not have access to the time she desired. vehicle. Supporting Evidence:Declaration of George Mardikian, Para. 19; Declaration of Lillian 9 Supporting Evidence: Mardikian, Para. 7, and Exhibit C thereto. Decl. Selfridge, $ 7; Exhibit 7, p. 7.11-7.14. ]2 20. On November 14, 2013, Ms. Mardikian 20. Undisputed made a written demand to Wawanesa to provide her with coverage for the fire loss to the Eldorado. Supporting Evidence: Decl. Selfridge, $ 5; Exhibit 3, pp. 3.40-3.41. 16 21. Wawanesa forwarded Ms. Mardikian's 21. Undisputed only for purposes of this letter to counsel for a coverage opinion. Motion for Summary Judgment. 18 No documents or communications have been Supporting Evidence: provided which prove Wawanesa forwarded 9 Declaration of H. Catherine Marlar, $ 4; Decl. the letter to counsel for a coverage opinion. 20 Wood, $ 5. 23 24 26 RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS B. MOTION FOR SUMMARYADJUDICATIONTO SECOND CAUSE OF ACTION (BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING) DEFENDANT' ALLEGED UNDISPUTED PLAINTIFF'S RESPONSE AND MATERIALFACTS AND SUPPORTING SUPPORTING EVIDENCE EVIDENCE 22. In August of 2005, Mr. Mardikian first 22. Disputed. filled out an application for an insurance policy with Wawanesa. Wawanesa General Insurance Company filled out much of the application and additional Supportine Evidence: writings and/or markings were added after the Decl. Alexandra Sel fridge, tttt 3 and4; Exhibit 1, document was signed. June 10, 2014 Deposition Transcript of George Supporting Evidence: Declaration of George 10 Mardikian, p. 1 .5; Exhibit 2, Underwriting Mardikian, Para 22.A. Application, pp. 2.1-2 2. 12 23. In August of 2005, Mr. Mardikian lived 23 Undisputed 13 with his mother and his father. 14 Supportinq Fvidence: 15 Decl. Selfridge, gtt 3 and 5; Exhibit 1, p. 1.5; Exhibit 2, p. 2.1; Exhibit 3, Plaintiff Lillian Mardikian's Complaint, p. 3.2. 17 24. By way of the "Application for 24. Disputed 18 Automobile Policy," Mr. Mardikian sought insurance for four automobiles. This was a "Family Combination Auto Policy" 19 "Family" which was mtended to cover the 20 Supportinv. Evidence: automobiles and the drivers within the family Decl. Selfridge, tttt3 and 4; Exhibit 1, p 1.5; Supporting Evidence: Declaration of George 21 Exhibit 2, p. 2. 1~ Mardikian, Para. 22.B., Declaration of Lillian Mardikian, Para. 3 22 23 25 ~ Mr. Mardikian was to be the principal 25. Disputed. driver of. three of the cars, while Ms. Mardikian 24 was to be the principal driver of one. The term "principal driver" was never 25 discussed by or used by any insured, nor is the SupportinL Evidence: term defined. 26 Decl. Selfridge, and tttt 3 4; Exhibit 1, p. 1.5; Supporting Evidence: Declaration of George Exhibit 2, p. 2.1 ~ Mardikian, Para. 22.C 27 28 RESPONSE TO STATEMEN'r OF fACTS/STATEMENT OF FACTS 26. In the "Applicant's Statement" section of 26. Disputed the Application for Automobile Policy, Question No. 10 asked, "Is vehicle owned by First, it is not ascertained who filled out the 3 someone other than Applicant, Spouse or section of the application, when it was filled Mortgagee?" Mr. Mardikian responded, "no" out, and whether it was an employee of with respect to each of the four vehicles for Wawanesa General Insurance Company. which he sought insurance. Second, because Lillian Mardikian had an interest in the vehicle, she may be considered a 6 Supportine Evidence: "Mortgagee". Decl. Selfridge, )tt 3 and 4; Exhibit 1, p. 1.5; Supporting Evidence: Declaration of George Exhibit 2, p. 2.1. Mardikian, Para. 22.D.; Declaration of Lillian Mardikian, Para. 3. 27. Mr. Mardikian signed the insurance 27. Disputed application on August 17, 2005, declaring that 10 "the answers to the questions and the statements The quote is incomplete. This sentence of the made by me on this application are true and Application goes on to clearly state "and I complete and request the company, in reliance declare that the company may recompute the 12 upon them to issue the policy of insurance premium or return ALLMONIES PAID if applied for...." my answers to the questions and my 13 statements are not substantially true" Supportine Evidence: (emphasis added). Wawanesa has not returned Decl. Sel&idge, tttt3 and 4; Exhibit 1, p. 1.5; all monies paid and has refused to do so. Exhibit 2, p. 2.2. Furthermore, the Application as it exists in the exhibit is NOT the same document as existing at the time Mr. Mardikian signed the 17 document, as markings and additions were made after his signature. Supporting Evidence: Declaration of George Mardikian, Para. 22.E. 19 28. Wawanesa issued the policy(No 6734314). 28. Disputed: 21 Suoportina Evidence: The policy number is FA6734314, with the Decl. Steve Cescolini, $ 4; Exhibit 4, the Policy. "FA" to indicate it is a "Family Combination Auto Policy". 23 Supporting Evidence: Declaration of George Mardikian, Para. 22.F. 25 26 27 28 RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS 29. The pertinent provisions ofthe Policy are as 29. Disputed follows: Ms. Mardikian was not provided a copy of the DEFINITIONS policy, and furthermore, it is not known ifthis A. Throughout this policy "you" and "your" quote is &om a "personal policy" or a "Family 4 Combination Auto Policy" which was to be refer to the "named insured" on the Policy Declarations; and issued. Supporting Evidence: Declaration of Lillian 1. The spouse, or Mardikian, Para. 3. Declaration of George 2. A person who is a registered domestic Mardikian, Para. 22.G partner under California law with the "named Insured, ifa resident of the same household. e ~~ 8 F. "Family member" means a person related to you by blood, marriage, registered 10 domestic partnership under California law or adoption who is a resident of your household. 1 1, This includes a ward or foster child. 12 J. "Your covered auto" means: 14 1. Any vehicle shown in the Declarations. 2. A "newly acquired auto". ~~ ~ L. "Newly acquired auto": 18 1. "Newly acquired auto" means any ofthe following types of vehicles you become the owner of during the policy period: 20 a. A private passenger auto; 21 ~ ~ ~ PART III 22 COVERAGE FOR DAMAGE 23 TO YOUR AUTO 24 COVERAGE 9 —COMPREHENSIVE 25 ro ~ 26 INSURING AGREEMKNT 2'7 A. %'e will pay for direct and accidental loss to "your covered auto" or any "non- 28 RESPONSE TO STATEMEN'r OF rACTS/STATEMENT OF FACTS owned auto", including their "equipment", minus any applicable deductible shown in the Declarations.... 3 Supportina Evidence: Decl. Cescolini, $ 4; Exhibit 4, pp. 4.6-4.7 and 4.12. 5 30. Mr. Mardikian and Ms. Mardikian were 30. Undisputed. both listed drivers on the Policy. 7 Supportine Evidence: 8 Decl. Cescolini, $ 4; Exhibit 4, p 4.2. 9 31. Mr. Mardikian was the only "named 31. Disputed. 10 insured" on the Policy Declarations. Ms. Mardikian was also named as an insured Supportine Evidence: on the Policy Declaration. (See Declaration Decl. Cescolini, $ 4; Exhibit 4, pp. 4.1-4.2. Page as attached to the defendant's Lodging of Exhibits, Exhibit 4); Declaration of George Mardikian, Para. 22.H. 14 32. Ms Mardikian is Mr. Mardikian's mother, 32. Undisputed only as to the fact that Ms. 15 not his spouse or domestic partner. Mardikian is the mother of George E. Mardikian. Supoorting Evidence: Decl. Selfridge, $ 5; Exhibit 3, p. 3.2 at $ 1. 33. Mr. Mardikian began searching for a 1964 33. Disputed. Cadillac Eldorado to purchase as a surprise gift for his parents. The vehicle was to be a "family vehicle" and a 20 surprise to his parents with the intent to be as Supporting Evidence: a "family vehicle." It was never intended as a Decl. Wood, $ 4; Exhibit 5, pp. 5.4-5.6; Decl. gift solely to his mother or father. Selfridge, $ 6; Exhibit 6, p. 6.2 at lines 2-7. Supporting Evidence: Declaration of George Mardikian, Para. 22.I 23 24 34. Mr. Mardikian was eventually able to 34. Undisputed only as to the date the vehicle 25 ~ locate such a vehicle in Lansing, Michigan. He was picked up for shipping (February 14, 2012 paid for the car and parts that were sold along - transfer of possession and ownership). with it in December of 2011, He paid for Additional charges were paid on other dates. shipping of fhe Eldorado on January 27, 2012. The transaction was, however, one transaction The vehicle was picked up for shipping on 28 February 14, 2012. zesiomsc >o smvavsNr or: rAcrs~srAreMem or rAcrs - 11- Supportine Evidence: Decl. Selfridge, tt) 5and 6; Exhibit 6, p6.2 at line 11;p. 6.3 at lines 17-20 and 22-24,p. 6.4 at line 2-3, Exhibit 3 p 3 .7 line 7 & 20. 3 4 ~ 35. On February 20, 2012, the Eldorado 35. Undisputed caught on fire during transport. 5 Supportine Evidence: Decl. Sel fridge, tt 5; Exhibit 3, p. 3.8 at tt11. 8 36. As a result of the fire, Mr. Mardikian was 36 Disputed. never able to present the Eldorado to his 9 parents. The vehicle was symbolically "presented" to Mr. George E. Mardikian's parents on Suoportinv. Evidence. Valentine's Day, February 14, 2012. Supportmg Evidence: Declaration of George Decl. Wood, tt 4; Exhibit 5, pp. 5 4-5.6. Mardikian, Para 17, Declaration of Lillian Mardikian, Para. 4-5 12 37. On June 1„2012, Wawanesa took Mr. 37. Disputed Mardikian's Examination Under Oath. Mr. Mr. Mardikian surprised Mardikian testified his parents with the that he intended to give his parents the Eldorado as a surprise gift, pictures of the Vehicle, on Valentine's Day, sometime in the future, but never actually did February 14, 2012. (The word "future" refers so. back to the earlier day when the vehicle was 16 located for purchase, and as to such date, SupportinL F vidence: February 14,2012 was the "future".) 17 Decl. Wood, tt 4;Exhibit 5, pp. 5.4-5.6. Supporting Evidence. Declaration of George Mardikian, Para. 16 18 19 38 On November 14, 2013, Ms. Mardikian 38 Undisputed made a written demand to Wawanesa to provide 20, her with coverage for the fire loss to the Eldorado. 22 Supportmg Evidence: Decl. Selfridge, tt 5;Exhibit 3, pp 3.40-3.41 23 24 25 26 '7 28 RESPONSE TO STATEMENT OF FACTS/STATEMENT OF FACTS -12- 39. Wawanesa forwarded Ms. Mardikian's 39. Undisputed only for purposes of this letter to counsel for a coverage opinion. Motion for Summary Judgment. No documents or communications have been 3 Supportinv. Evidence: provided which prove Wawanesa forwarded Declaration of H. Catherine Marlar, $ 4; Decl. the letter to counsel for a coverage opinion., Wood, $ 5. and the defendants has not produced all the communication between such counsel on the 5 basis of attorney-client privilege. Objection: Relevance unless all documents are produced as to communications between counsel and the defendants. 40. Coverage counsel reviewed the demand, 40. Undisputed only for purposes of this 10 relevant claim file materials, supervised legal Motion for Summary Judgment. research to be done regarding the coverage No documents or communications have been issues presented, and reviewed the resulting provided which prove coverage counsel research. performed these acts. l2 Objection: Relevance unless all documents are Supportina Evidence: produce