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1 Kenneth N. Greenfield, Esq. (State Bar No. 105721)
Alexandra N. Selfridge, Esq. (State Bar No. 247063)
2
LAlV OFFICES OF
KENNETH N. GREENFIELD
BERNARDO CFNTER DRIVE, SUITE 210
16i516
AIJl i lI mt>
SAiN DIFGO, CA
675-0301
92128 CIIR I,e Ior COIIg
(858)
FAX (858) 67 5-0319 ISy
selfmilge(a thcgrccnfieldle» firm corn
Attorneys for Defendant, WAWANESA GENERAL INSURANCE COMPANY
SUPERIOR COURT OF THK STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 GEORGE MARDIKIAN ) Case No CIV 517132
)
Plamtiff, ) DECLARATIONOF ALEXANDRAN.
) SKLFRIDGE IN SUPPORT OF
12 vs ) WAWANKSA GENERAL INSURANCE
)
COMPANY'S OPPOSITION TO
13 WAWANESA GENERAL INSURANCE )
PLAINTIFF'S MOTION FOR LEAVE
COMPANY, a corporation, and DOES 1 )
TO FILE A SUPPLEMENTAL
14 through 50, mclusive COMPLAINT
)
Filed Concurrentlv with.
15 Defendants to Evidence,
Opposition, Obg Obg to Req
16
for Judicial ¹tice
17
HearinI
)
Date August 31, 2015
18 ) Time 9 00am
) Dept Law and Motion
19 )
) Date Filed October 3, 2012
20 ) Trial Date October 19, 2015
21 I, Alexandra N Selfndge, declare as follows
22 1 I am an attorney duly licensed to practice before all of the courts of the State of
23 Cahfornia and am an associate with the Law Offices of Kenneth N Greenfield, attorneys of
24 record for Defendant Wawanesa General Insurance Company I have personal knowledge of each
25 of the following facts and, if called as a witness, could and would testify competently hereto,
26 except as to those matters which are explicitly set forth as based upon my information and belief
27 and, as to such matters, I am mformed and beheve that they are true and correct
28 ///
DECL. SELFRIDGE RE: OPPOSITION TO MOTION RE. SUPPLEMENTAL COMPLAINT
1 2 This declaration is made m support of Defendant Wawanesa General Insurance
2 Company's Opposition to Plamtiff s Motion for Leave to file a Supplemental Complaint
3 3 Plaintiffs February 20, 2013 Case Management Statement alleges that "It is
4 anticipated that the defendant will, no doubt, use discovery abuses as a bad faith tactic m an
5 attempt to force the plaintiff to abandon legitimate claims, and Ins Co tactic [sic]
" Attached as
6 Exlubit 1 is a true and correct copy of Plaintiffs Case Management Statement
7 4 On July 12, 2013, Plaintiffs counsel advised me via telephone that he mtended to
8 mtroduce evidence of Wawanesa's supposedly improper Motion to Compel Further Discovery
9 Responses at trial as evidence of continuing Bad Faith The Motion was ultimately granted by the
10 Court, and sanctions were awarded against Plaintiff's counsel
11 5 In response to Wawanesa's Motion to Sever the Issue of Coverage, Plamtiff
12 argued that this Court had already decided the issue of coverage by denying Wawanesa's Motion
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13 for Summary Judgment The Court rejected this argument as follows "The Court reJects
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()z ) 14 Plaintiffs mistaken conclusion that the October 8, 2013 Order made the affirmative findmg that
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15 Plamtiff became the vehicle's owner on February 14, 2012, as he contends When a triable issue
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W 16 of material fact is found on summary Judgment, which requires denial of said motion, this simply
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z~~ M 17 means that the issue is being reserved for the Jury to decide at trial." Attached as Exhibit 2 is a
18 true and correct copy of the Order Denying Motion to Sever
19 6 Attached hereto as Exhibit 3 is a true and correct copy of the "Order Reducing
20 Charge(s) to Misdemeanor Purs to PC Section 17 and Change of Plea —Order of Dismissal Under
21 PC Section 1203 4" regardmg Monte Sobrero.
22 7 On November 7, 2013, my firm served Plaintiffs counsel with Wawanesa's
23 Motion m Limme No 3 to exclude any evidence of or reference to any alleged post-filmg
24 htigation conduct by Wawanesa and/or its attorneys (collectively referred to as "Wawanesa" or
25 "Defendant" ) as a continuing breach of the Imphed Covenant of Good Faith and Fair Dealing
26 ("Bad Faith" ) Attached as Exhibit 4 is a true and correct copy of Wawanesa's Motion in Limine
27 No 3
28 ///
2
DECL. SELVRIDGE RE: OPPOSITION TO MOTION RE'UPPLEMENTAL COMPLAINT
1 8 On March 11, 2015, Plaintiffs counsel sent me e-mail correspondence, requestmg
2 that I stipulate to allow Plaintiff to file a Supplemental Complaint I rejected the request via e-
3 mail on behalf of Defendant the same day
4 I declare under penalty of perjury under the laws of the State of Cahforma that the
5 foregomg is true and correct and that tliis declaration was executed m the City of San Diego, State
6 of Caltfornta on August +I, 2015.
By ill~DRA N. SELFRIDGE, Declarant
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DECL. SELFRIDGE RE: OPPOSITION TO MOTION RE: SUPPLEMENTAL COMPLAINT
Exhibit 1
CII-110
ATTCRNEY OR pARTY wlTHOUTATTORNEY (Name, Slate Ber number, end address) FOR COIJRT USE ONLY
MONTIE S, DAY, ATTORNEY 73327
DAY LAW OFFICES
1235 CASA PALERMO CIRCLE
HENDERSON, NEVADA89011
TELEPHONE NO, 208-280-3766 800-291-2901
FAX NO (OPVon»
mSdayeSqaOI.COm
E MAILADDREEB (dpvone))
GEORGE
ATTORNEY FOR (Nenle). MARDIKIAN
SUPERIOR COURT OF CAI.IFORNIA, COUNTY OF SAN MATEO
BTREETADDREss, 800 N. HUMBOLT STREET
MAILINGADDRESSI
CITYANDZIPCODE SAN MATEO, CA 94401
BRANcH NAME Centra]
PLAINTIFF/PETITIONER'EORGE MARDIKIAN
DEFENDANT/REsPQNDENT: WAWANESA GENERAL INS, COMPANY
CASE MANAGEMENTSTATEMENT CASE NUMBER,
(Checkone): M UNLIMITEDCASE
(Amount demanded
M EIINITED CASE
(Amount demanded is $ 26,000
CIV 517132
exceeds $ 26,000) orless)
A CASE INANAOEIIENTCONFERENCE is scheduledas follows.
Date: March 13, 2013 Time: 9:00 a.m. '7
Dept., Div„ Room.
Address above).
of court (ifdifferent from the address
400 COUNTY CENTER, REDWOOD CITY, CAL 94063
~ NotlceoflntenttoAppearby Telephone, by (name):
INSTRUCTIONS: All applicable boxes must be checked, and the specifiedinformation must be provided.
1. Party or partlea(answer one):
~v'his
a,
b ~ statement
This statement
is submitted
is submitted
by party (name): GEORGE
iointiy by parties
(nemes):
MARDIII'IAN
2 Complaint and crosat 3 Page 3 2
1 EVALUATION:
THE DEFENDANT SUCCESSFULLY COMPLETED PROBATION, HAD NO PRIOR
OR SUBSEQUENT OFFENSES, AND APPEARS TO BE EMINENTLYSUITABLE FOR A
4 CHANGE OF PLEA UNDER 1203 4 P C AND THAT WILL BE RECOMMENDED
5
THE DEFENDANT APPEARS TO BE INELIGIBLE FOR THE REDUCTION OF THE
LEVEL OF THE OFFENSE FROM A FELONY TO A MISDEMEANOR, SHOULD HE HAVE
7.
BEEN ELIGIBLE, HE WOULD HAVE BEEN CONSIDERED SUITABLE
8
RECONIMENDATIGN:
IT IS RESPECTFULLY RECOMMENDED THAT THE DEFENDANT BE ALLOWED
,0
TO WITHDRAW HIS PLEA OF GUILTYAND SUBSTITUTE A PLEA OF NOT GUILTY, AND
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THAT THE MA%i ER. BE DISMISSED PURSUANT TO 1203 4 P C
RESPECTFULLY SUBMITTED,
STEVEN L BAUTISTA, COUNTY PROBATION OFFICER
15
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THLEEN CORTLUND
~<: v 5 ~L~'~L
DEPUTY PROBATION OFFICER
ADUL1 DIVISION, MARTiNEZ
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APPROVFD By
WILLIAML GRUNE T
UN)T SUPERVISOR
KC NW
DICTATED 7/20/00
TYPED 7/20/00
26
Exhibit 3 Page 3 3
4
Exhibit 4
Kenneth N. Greenfield, Esq. (State Bar No. 105721)
Alexandra N. Selfridge, Esq. (State Bar No. 247063)
l. A iV 0 I'
IC ES 0I
KENNL'TIIN. GRF.ENFIELD
DRIVE, SUITE 210
16516 BISRNARDO CENTER
SAN DIEGO, CA 92128
(858) 675-0301
FAX (858) 675 —0319
l and the cases which lrave subsequently hmited the holding of White provide support for
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thc argument that it should not be further broadened. Accordingly, with the exception of
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unreasonably low settlement offers (which is not an issue), this Court should exclude all evidence
18 and testimony referring to any post-filing litigation conduct by Wawanesa and/or its attorneys as
19 evidence of continuing Had Faith
20 C. WAWANESA'S POST-FILING PLEADINGS AND COMMUNICATIONSARE
PROTECTED BY THE LITIGATIONPRIVILEGE
21
22 Although codified in Civil Code section 47, the litigation privilege is usually analyzed
pursuant to the test in Silbei g v Anderson (1990) 50 Cal.3d 205 [266 Cal,Rptr. 638, 786 P,2d
24 365]. (Rusheen v Cohen (2006) 37 Cal.4th 1048, 1057 [39 Cal Rptr.3d 516, 128 P 3d 713], citing
Silberg v Anderson, supra, 50 Cal.3d 205 ) 1 he "litigation privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or othei
participants authorized by law, (3) to achieve the obJects of the litigation, and (4) that have some
28 connection or logical relation to the action." (Silbe> g v Andeison, supl"a, 50 Cal.3d 205, 212, See
7 Exhibit 4, Page 4.7
DEFENDANT'S MOTION IN LIMINENO. 3
also Id, at 215-216 [Privilege accorded to statements made in the course of judicial proceedings is
absolute in nature and applies to all torts except malicious prosecution].) The privilege npplies
"even though the publication is made outside the court and no function of the court or its officeis
is involved." (Rusheen v Cohen, supra, 37 Cal.4th 1048, 1057.) "Any doubt as to whether the
privilege applies is resolved in favor of applying" (Adams v. Superior Court (1992) 2
Cal.App.4th 521, 529 [3 Cnl.Intr.2d 49].) This privilege was later expanded to include pleadings,
as they are "literally the subject of immunity unde> Civil Code section 47, subdivision (b)."
8 (Calrfornia Physicians'ervice v. Superror Court, szrpra, 9 Cal,App 4th 1321, 1330)
9 In the insurance context, the A~hite court found tlrat only ridiculously low Code of Civil
10 Procedure section 998 Offers to Compromise remain unprotected by the litigation privilege
(While, supra, 40 Cal.3d 870, 888.) Thnt court essentially carved out a very limited exception to
the litigation privilege, As discussed, szipra, because 8'hite is limited to its facts, and because
13 California courts have not expanded its holding, any post-filing communications and pleadmgs,
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0 allegedly brought by Wawanesa in 13ad Faith, are subject to the litigation privilege (See Civ
Q 7~lPg
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Code, 47; Californr'a Physr'crans'ervice v Superior Corirt, szipra, 9 Cal.App.4th 1321, 1330.)
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Thus, the court should exclude such "evidence" at tiial.
17 D. EVIDENCE OF OR REFERENCE TO WAWANESA'S POST-FILING
LITIGATION CONDUCT HAS THK TENDENCY TO CONFUSE AND
18 PRK JUDICE THK JURY, WHILE NECESSITATING UNDUE
CONSVMI'TION OF TIME.
19
20 In addition to being irrelevant, evidence of Wawanesa's allegedly impropei post-filing
litigation conduct will consume unnecessary time and serve to confuse the jury as to the true
issues at hand: whether Wawanesa failed to pay Plaintiff insurance benefits which were due, and
23 whether Wnwanesa was unreasonable in withholding these benefits from Plaintiff Additionally,
24 evidence of and reference to Wawanesa's allegedly impioper post-filing litigation conduct could
falsely indicate a continuing course of insurance Bad Faith As such, any discussion of
Wawanesn s post-filing litigation conduct will constitute a waste of undue time and money, while
27 serving only to distiact the jury and preludice Wawanesa. Based on the foregoing, the Court must
28 exclude this evidence at trial
8 Exhibit 4 page 4 8
DEFENDANT'S MOTION IN LIMINENO. 3
IV.
2 CONCLUSION
3 For the foregoing reasons. Wawanesa General Insurance Company respectfully requests
this Court issue an order excluding and any all evidence of or reference to Wawanesa's allegedly
improper post-filing litigation conduct as evidence of continuing Bad Faith.
7 DA'I ED, November 7, 2013 LAW OFFICES 01" KENNETI-IN. GREENFIELD
10
kEA1ETH N. GREENFIELD,
ALEXANDRAN. SELFRIDGE,
Attorneys for Defendant, WAWANESA
GENERAL INSURANCE COMPANY
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9 Exhibit 4, Page 4.9
DEI"ENDANT'S MOTION IN LIMINENO. 3
1 Kenneth N. Greenfield, Ksq. (State Bar No. 105721)
Alexandra N. Selfridge, Esq. (State Bar No. 247063)
2
I,Aw orrlcr.s of
KENNETH N. GR1".ENI"IELD
IIERNARDO CEN1 FR DRIVE, SU I I E 210
16%16
SAN DIEGO, CA 92128
(858) 675-0301
FAX (858) 67 5-0319
cele >dgc,c)thcgreenficldlcwfirrn ccrc
Attorneys for Defendant, WAWANFSA GENERAL INSURANCE COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10
11 GEORGE MARDI' AN ) Case No. CIV 517132
)
12 Plaintiff, ) DECLARATIONOF ALEXANDRAN.
) SELFRIDGK IN SUPPORT OF
13 vs. ) WAWANKSAGENERAL INSURANCE
)
COMPANY'S MOTION IN LIMINETO
14 WAWANES A GENERAL INSURANCE EXCLUDE EVIDENCE OF
)
COMPANY, a corporation, and DOES WAWANKSA'S "LITIGATION
1 ) TACTICS" AS EVIDENCE OF
15 through 50, mclusive ) ALLEGED CON'I"INUINGBAD FAITH
)
Defendants. NO. 3 OF 14
17 Tnal Date November 12, 2013
Trial Time 9,00 am
Trial Dept PJ
)
19 )
) Date Piled Octobei 3, 2012
20 )
I, Alexandra. N Selfridge, declare as follows
22 1. I am an attorney duly licensed to practice before all of the courts of the State of
23 California and am an associate with the Law Offices of Ikenneth N, Greenfield, attorneys of
record for Defendant Wawanesa General Insurance Company, I have personal Icnowledge of eacll
of the following facts and, if called as a witness, could and would testify competently hereto,
except as to those matters which are explicitly set forth as based upon my information and belief
27 and, as to such matters, I am informed and believe that they are true and correct.
///
Exhibit 4, Page 4.10
DECLARA fION OF ALEXANDRAN. SI.LIRIDGE IN SUPPORT Oi" MIL NO 3
This declaration is made in support of Defendant Wawanesa General Insurance
Company's Motion in Limme No. 3.
3. By way of Plaintiffs v, riiicn discovery responses, he repeatedly claims that
Wawanesa's discovery reques(s are "designed and served merely to harass and vex plaintiff and
to create an unreasonable burden."
4. Plaintiffs February 20, 2013 Case Management Statement alleges that "Ii is
anticipated that the clefendani will, no doubt, use discovery abuses as a bad faith tactic in an
tactic "
attempt to force the plaliiilffio abandon legitimate claims, and Ins Co [sic)
5, On July 15, 2013, Plaintiff's counsel advised me that he intends io introduce
10 eviclence of Wawanesa's supposedly improper Motion io Compel further Discovery Responses
and Motion to Compel Responses to Questions not Answered at Deposition (both of which were
12 granted by the Court) at trial as evidence of continuing Bad Faith.
IV
13 6. On October 7, 2013, Plaintiffs counsel sent me two separate letters, threatemng to
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14 present evidence of Defense counsel's purportedly outrageous litigation conduct at trial as
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Q,Z() 15 evidence of coniinumg Bad Faith. Plaintiff's allegations of Bad Faith litigation tactics were based
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True correct copies of both
) ~ entirely upon the content of Wawanesa's pleaclings in this case and
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17 letters are attached hereto as Exhibit l.
18 I declare under penalty of perjury under thc laws of the State of California thai the
19 foregoing is true and correct and thai, thisdeclaration was executed in the City of San Diego, State
20 of California on November ~, 2013
L~<
1
21
AI.EXA"DRA A. SELF'RIDGE, DeclaYe~it- —---
23
24
25
26
27
Exhibit 4, Page 4.11
DECLARATION or ALEXANDRAN. SELFR1DGE IN SUPPORT OE MiL NO. 3
Exhibit 4, Page 4.12
13ay Law Offices
1235 Casa Palermo Circle
Henderson, Nevada 89011
Tel: (208) 280-3766
E-mail. msdayesqNaol.corn
October 7, 2013
Ms. Alexandra N. Sel&idge, Attorney
Law Offices 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. Selfridge:
The accompanying letter is not a settlement offer or any settlement negotiations,
Accordingly, it is not intended to be covered by the "White Waiver" nor confidential. It is a
demand related to the continuing breach of the covenant of good faith and fair dealing by
Wawanesa General Insurance Company that has persisted though the present, specifically
the bad faith tactic of assertion and prosecution of the allegation that Mr. Mardikian has
committed fraud and misrepresentation in connection with the claim filed against his
insurance policy and defendant. Wawanesa General Insurance Company from the beginning
of the claim investigation process and throughout this litigation has, in bad faith, continued to
make false allegations against Mr. Mardikian, contending that his conduct constituted a willful
and deliberate fraud and misrepresentation. With the aid of the Law Offices of Kenneth N.
Greenfield and you, and without regard for your ethical duties as an attorney defined by statute,
Wawanesa General Insurance Company has continued to use the fraudulent allegations,
obviously known by Wawanesa General Insurance Company to be false, as a means of
attempting to cause Mr. Mardikian more emotional distress as well as to cause him to abandon
his legitimate claim. You, your office, and Wawanesa General Insurance Company, has
continued to claim "fraud" against Mr. Mardikian. While you may claim that, such slander and
libel is absolutely privileged under the judicial privilege, such outrageous conduct is admissible
in this case to show the continuing bad faith and breach of the covenant of good faith and fair
dealing by Wawanesa, as well for the consideration by the jury as to the emotional distress such
bad faith tactics would have upon Mr, Mardikian.
Accordingly, it is my intent to call you, or anyone who may attempt to represent
Wawanesa General Insurance Company, as a witness in the continuing misconduct. The
pleadings and documents you have filed with this Court, along with the other evidence, will be
used in the prosecution of the instant action.
Exhibit 4, Page 4.13
Exhibit 1, Page 1.1
Ms, Alexandra N. Selfridge, Attorney
October 7, 2013
Page 2
There is no need to go into the law on the subject as you are an attorney, I am aware you
have knowledge of the controlling case law, as well as the statutes and law regarding the duties
of an attorney with respect to the conduct described.
Sincerely yours,
Montie S. Day
cc: George Mardikian
enclosure
Exhibit 4, Page 4.14
Exhibit 1, Page 1.2
Day Law Offices
1235 Casa Palermo Circle
Henderson, Nevada S9011
Tel: (208) 280-3766
E-mail:msdayesq@aol.corn
October 7, 2013
Ms. Alexandra N, Selfridge, Attorney
Law Offices 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 letter is a demand related to the continuing breach of the covenant of good
faith and fair dealing by Wawanesa General Insurance Company which has persisted
though the present, specifically the bad faith tactic of asserting and prosecuting the
allegation that Mr. Mardikian has committed fraud and misrepresentation in connection
with the claim filed against his insurance policy and defendant. Wawanesa General
Insurance Company from the beginning of the claim handling process and throughout this
litigation has, in bad faith, continued to make false allegations against Mr. Mardikian
contending that his conduct constituted a willful and deliberate fraud and misrepresentations.
As you know, during the claim process Wawanesa General Insurance Company alleged
that Mr. Mardikian had made material false misrepresentation and committed fraud in
connection with the claim under the policy. The allegations made by Wawanesa General
Insurance Company were false then, and remain false, but Wawanesa General Insurance
Company has persisted in asserting and prosecuting the false allegations of fraud against Mr.
Mardikian throughout this litigation. Wawanesa General Insurance Company continues the bad
faith tactic disregarding the facts and with full knowledge that the allegations were false and
unsupported by any evidence. This was and continues to be a deliberate and willfulcontinuing
breach of the covenant of good faith and fair dealing and utilized as an attempt, as it was in the
claim process, to cause Mr. Mardikian damages and emotional distress unless he withdraws his
claim,
In filing the answer to the complaint, an answer prepared by you and verified under the
penalties of perjury, Wawanesa General Insurance Company made the same unsubstantiated
charges against Mr. Mardikian, and eventually, the allege facts to support the false allegations
were set forth in the verified amended answer making these serious charges against Mr.
Mardikian. Just to summarize, Wawanesa claimed, Wawanesa General Insurance Company, in
the verified amended answer, alleges:
Exhibit 4, page 4.15
Exhibit 1, Page 1.3
Ms. Alexandra N. Selfridge, Attorney
October 7, 2013
Page 2
FIRST AFFIRMATIVEDEFENSE
...In addition, the loss was excluded from coverage pursuant to the "Fraud and
Misrepresentation" provision of the Policy. Although he knew that the vehicle had been
involved in a fire loss at the time he added the vehicle to the Policy, Plaintiff concealed
that information from Defendant. Although Plaintiff knew that the vehicle had body
damage, he concealed that information as well. Plaintiff made misrepresentations
regarding the fact that numerous parts were not installed on the vehicle, the purchase
price, and the purchase date. Plaintiff attempted to conceal the fact that he had an
insurance policy with another insurer for the subject vehicle as well. Plaintiffmay have
made misrepresentations as to whether or not the vehicle was actually a replacement
vehicle...,
SECOND AFFIRMATIVEDEFENSE
...In addition, Plaintiffviolated the "Fraud and Misrepresentation" provision of the
Policy. Although he knew that the vehicle had been involved in a fire loss at the time he
added the vehicle to the Policy, Plaintiffconcealed that information from Defendant.
Although Plaintiff knew that the vehicle had body damage, he concealed that
information as well. Plaintiff made misrepresentations regarding the fact that numerous
parts were not installed on the vehicle, the purchase price, and the purchase date.
Plaintiff attempted to conceal the fact that he had an insurance policy with another
insurer for the subject vehicle as well. Plaintiffmay have made misrepresentations as to
whether or not the vehicle was actually a replacement vehicle. In addition, Plaintiff
failed to comply with the "Duties after an Accident or a Loss" provision of the Policy.
When he reported the loss, Plaintiffdid not accurately state when the loss happened.
Plaintiff repeatedly failed to cooperate in the investigation of the underlying claim by
refusing to speak with Peter Brown, declining to give a second recorded statement, and
resisting the taking of his Examination Under Oath. As a result, it became necessary for
Defendant to hire coverage counsel to obtain Plaintiffs Examination Under Oath. When
Defendant lawfully accessed Plaintiffs DMV records, Plaintiff accused Defendant of
engaging in improper behavior, rather than authorizing Defendant to obtain those
pertinent records. As discovery is ongoing, there may be additional facts which support
Defendant's Second Affirmative Defense, and Defendant expressly reserves the right to
supplement this defense.
FIFTH AFFIRMATIVEDEFENSE
This answering Defendant is informed and believes and thereon alleges that the
Complaint, and each and every cause of action or purported cause of action contained
therein, is barred by the Doctrine of Unclean Hands. Although Plaintiff knew that the
subject vehicle had been involved in a fire loss at the time he added the vehicle to the
Policy, he concealed that information from Defendant. Although Plaintiff knew that the
vehicle had body damage, he concealed that information as well. Plaintiffmade
misrepresentations regarding the fact that numerous parts were not installed on the
vehicle, the purchase price, and the purchase date, Plaintiffattempted to conceal the fact
Exhibit 4 Page 4 16
Exhibit 1, Page 1.4
Ms, Alexandra N. Selfridge, Attorney
October 7, 2013
Page 3
that he had an insurance policy with another insurer for the subject vehicle as well.
Plaintiffmay have made misrepresentations as to whether or not the vehicle was actually
a replacement vehicle„,.
SEVENTH AFFIRMATIVEDEFENSE
NINTH AFFIRMATIVEDEFENSE
This answering Defendant is informed and believes and thereon alleges that, at all times
mentioned within Plaintiff s Complaint, and based upon all of the facts of Plaintiff s
insurance claim, Plaintiffs insurance claim was excluded from coverage under the
following insurance
policy language:
FRAUD AND MISREPRESENTATION
Coverage is not provided to any person who knowingly conceals or misrepresents any
material fact or circumstance relating to this insurance:
1. At the time application is made; or
2. At any time during the policy period; or
3. In connection with the presentation, investigation or settlement of a claim.
Although he knew that the subject vehicle had b
Preview
1 Kenneth N. Greenfield, Esq. (State Bar No. 105721) Alexandra N. Selfridge, Esq. (State Bar No. 247063) 2 LAlV OFFICES OF KENNETH N. GREENFIELD BERNARDO CFNTER DRIVE, SUITE 210 16i516 AIJl i lI mt> SAiN DIFGO, CA 675-0301 92128 CIIR I,e Ior COIIg (858) FAX (858) 67 5-0319 ISy selfmilge(a thcgrccnfieldle» firm corn Attorneys for Defendant, WAWANESA GENERAL INSURANCE COMPANY SUPERIOR COURT OF THK STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 GEORGE MARDIKIAN ) Case No CIV 517132 ) Plamtiff, ) DECLARATIONOF ALEXANDRAN. ) SKLFRIDGE IN SUPPORT OF 12 vs ) WAWANKSA GENERAL INSURANCE ) COMPANY'S OPPOSITION TO 13 WAWANESA GENERAL INSURANCE ) PLAINTIFF'S MOTION FOR LEAVE COMPANY, a corporation, and DOES 1 ) TO FILE A SUPPLEMENTAL 14 through 50, mclusive COMPLAINT ) Filed Concurrentlv with. 15 Defendants to Evidence, Opposition, Obg Obg to Req 16 for Judicial ¹tice 17 HearinI ) Date August 31, 2015 18 ) Time 9 00am ) Dept Law and Motion 19 ) ) Date Filed October 3, 2012 20 ) Trial Date October 19, 2015 21 I, Alexandra N Selfndge, declare as follows 22 1 I am an attorney duly licensed to practice before all of the courts of the State of 23 Cahfornia and am an associate with the Law Offices of Kenneth N Greenfield, attorneys of 24 record for Defendant Wawanesa General Insurance Company I have personal knowledge of each 25 of the following facts and, if called as a witness, could and would testify competently hereto, 26 except as to those matters which are explicitly set forth as based upon my information and belief 27 and, as to such matters, I am mformed and beheve that they are true and correct 28 /// DECL. SELFRIDGE RE: OPPOSITION TO MOTION RE. SUPPLEMENTAL COMPLAINT 1 2 This declaration is made m support of Defendant Wawanesa General Insurance 2 Company's Opposition to Plamtiff s Motion for Leave to file a Supplemental Complaint 3 3 Plaintiffs February 20, 2013 Case Management Statement alleges that "It is 4 anticipated that the defendant will, no doubt, use discovery abuses as a bad faith tactic m an 5 attempt to force the plaintiff to abandon legitimate claims, and Ins Co tactic [sic] " Attached as 6 Exlubit 1 is a true and correct copy of Plaintiffs Case Management Statement 7 4 On July 12, 2013, Plaintiffs counsel advised me via telephone that he mtended to 8 mtroduce evidence of Wawanesa's supposedly improper Motion to Compel Further Discovery 9 Responses at trial as evidence of continuing Bad Faith The Motion was ultimately granted by the 10 Court, and sanctions were awarded against Plaintiff's counsel 11 5 In response to Wawanesa's Motion to Sever the Issue of Coverage, Plamtiff 12 argued that this Court had already decided the issue of coverage by denying Wawanesa's Motion 4l I 13 for Summary Judgment The Court rejected this argument as follows "The Court reJects QQ ()z ) 14 Plaintiffs mistaken conclusion that the October 8, 2013 Order made the affirmative findmg that ~@4 4 V Q r K Q 15 Plamtiff became the vehicle's owner on February 14, 2012, as he contends When a triable issue U Q 0 W 16 of material fact is found on summary Judgment, which requires denial of said motion, this simply Z a z~~ M 17 means that the issue is being reserved for the Jury to decide at trial." Attached as Exhibit 2 is a 18 true and correct copy of the Order Denying Motion to Sever 19 6 Attached hereto as Exhibit 3 is a true and correct copy of the "Order Reducing 20 Charge(s) to Misdemeanor Purs to PC Section 17 and Change of Plea —Order of Dismissal Under 21 PC Section 1203 4" regardmg Monte Sobrero. 22 7 On November 7, 2013, my firm served Plaintiffs counsel with Wawanesa's 23 Motion m Limme No 3 to exclude any evidence of or reference to any alleged post-filmg 24 htigation conduct by Wawanesa and/or its attorneys (collectively referred to as "Wawanesa" or 25 "Defendant" ) as a continuing breach of the Imphed Covenant of Good Faith and Fair Dealing 26 ("Bad Faith" ) Attached as Exhibit 4 is a true and correct copy of Wawanesa's Motion in Limine 27 No 3 28 /// 2 DECL. SELVRIDGE RE: OPPOSITION TO MOTION RE'UPPLEMENTAL COMPLAINT 1 8 On March 11, 2015, Plaintiffs counsel sent me e-mail correspondence, requestmg 2 that I stipulate to allow Plaintiff to file a Supplemental Complaint I rejected the request via e- 3 mail on behalf of Defendant the same day 4 I declare under penalty of perjury under the laws of the State of Cahforma that the 5 foregomg is true and correct and that tliis declaration was executed m the City of San Diego, State 6 of Caltfornta on August +I, 2015. By ill~DRA N. SELFRIDGE, Declarant 10 rv f 13 ~Q Q g > or o 14 tg sn g Q t Z 15 () U 0 o Pg 0 16 Z Z 4 at tn trr 17 o 19 20 21 22 23 25 27 28 3 DECL. SELFRIDGE RE: OPPOSITION TO MOTION RE: SUPPLEMENTAL COMPLAINT Exhibit 1 CII-110 ATTCRNEY OR pARTY wlTHOUTATTORNEY (Name, Slate Ber number, end address) FOR COIJRT USE ONLY MONTIE S, DAY, ATTORNEY 73327 DAY LAW OFFICES 1235 CASA PALERMO CIRCLE HENDERSON, NEVADA89011 TELEPHONE NO, 208-280-3766 800-291-2901 FAX NO (OPVon» mSdayeSqaOI.COm E MAILADDREEB (dpvone)) GEORGE ATTORNEY FOR (Nenle). MARDIKIAN SUPERIOR COURT OF CAI.IFORNIA, COUNTY OF SAN MATEO BTREETADDREss, 800 N. HUMBOLT STREET MAILINGADDRESSI CITYANDZIPCODE SAN MATEO, CA 94401 BRANcH NAME Centra] PLAINTIFF/PETITIONER'EORGE MARDIKIAN DEFENDANT/REsPQNDENT: WAWANESA GENERAL INS, COMPANY CASE MANAGEMENTSTATEMENT CASE NUMBER, (Checkone): M UNLIMITEDCASE (Amount demanded M EIINITED CASE (Amount demanded is $ 26,000 CIV 517132 exceeds $ 26,000) orless) A CASE INANAOEIIENTCONFERENCE is scheduledas follows. Date: March 13, 2013 Time: 9:00 a.m. '7 Dept., Div„ Room. Address above). of court (ifdifferent from the address 400 COUNTY CENTER, REDWOOD CITY, CAL 94063 ~ NotlceoflntenttoAppearby Telephone, by (name): INSTRUCTIONS: All applicable boxes must be checked, and the specifiedinformation must be provided. 1. Party or partlea(answer one): ~v'his a, b ~ statement This statement is submitted is submitted by party (name): GEORGE iointiy by parties (nemes): MARDIII'IAN 2 Complaint and crosat 3 Page 3 2 1 EVALUATION: THE DEFENDANT SUCCESSFULLY COMPLETED PROBATION, HAD NO PRIOR OR SUBSEQUENT OFFENSES, AND APPEARS TO BE EMINENTLYSUITABLE FOR A 4 CHANGE OF PLEA UNDER 1203 4 P C AND THAT WILL BE RECOMMENDED 5 THE DEFENDANT APPEARS TO BE INELIGIBLE FOR THE REDUCTION OF THE LEVEL OF THE OFFENSE FROM A FELONY TO A MISDEMEANOR, SHOULD HE HAVE 7. BEEN ELIGIBLE, HE WOULD HAVE BEEN CONSIDERED SUITABLE 8 RECONIMENDATIGN: IT IS RESPECTFULLY RECOMMENDED THAT THE DEFENDANT BE ALLOWED ,0 TO WITHDRAW HIS PLEA OF GUILTYAND SUBSTITUTE A PLEA OF NOT GUILTY, AND t f THAT THE MA%i ER. BE DISMISSED PURSUANT TO 1203 4 P C RESPECTFULLY SUBMITTED, STEVEN L BAUTISTA, COUNTY PROBATION OFFICER 15 'Y K M+4~ THLEEN CORTLUND ~<: v 5 ~L~'~L DEPUTY PROBATION OFFICER ADUL1 DIVISION, MARTiNEZ 20 i 2 I APPROVFD By WILLIAML GRUNE T UN)T SUPERVISOR KC NW DICTATED 7/20/00 TYPED 7/20/00 26 Exhibit 3 Page 3 3 4 Exhibit 4 Kenneth N. Greenfield, Esq. (State Bar No. 105721) Alexandra N. Selfridge, Esq. (State Bar No. 247063) l. A iV 0 I' IC ES 0I KENNL'TIIN. GRF.ENFIELD DRIVE, SUITE 210 16516 BISRNARDO CENTER SAN DIEGO, CA 92128 (858) 675-0301 FAX (858) 675 —0319 l and the cases which lrave subsequently hmited the holding of White provide support for o ~ thc argument that it should not be further broadened. Accordingly, with the exception of c L4 unreasonably low settlement offers (which is not an issue), this Court should exclude all evidence 18 and testimony referring to any post-filing litigation conduct by Wawanesa and/or its attorneys as 19 evidence of continuing Had Faith 20 C. WAWANESA'S POST-FILING PLEADINGS AND COMMUNICATIONSARE PROTECTED BY THE LITIGATIONPRIVILEGE 21 22 Although codified in Civil Code section 47, the litigation privilege is usually analyzed pursuant to the test in Silbei g v Anderson (1990) 50 Cal.3d 205 [266 Cal,Rptr. 638, 786 P,2d 24 365]. (Rusheen v Cohen (2006) 37 Cal.4th 1048, 1057 [39 Cal Rptr.3d 516, 128 P 3d 713], citing Silberg v Anderson, supra, 50 Cal.3d 205 ) 1 he "litigation privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or othei participants authorized by law, (3) to achieve the obJects of the litigation, and (4) that have some 28 connection or logical relation to the action." (Silbe> g v Andeison, supl"a, 50 Cal.3d 205, 212, See 7 Exhibit 4, Page 4.7 DEFENDANT'S MOTION IN LIMINENO. 3 also Id, at 215-216 [Privilege accorded to statements made in the course of judicial proceedings is absolute in nature and applies to all torts except malicious prosecution].) The privilege npplies "even though the publication is made outside the court and no function of the court or its officeis is involved." (Rusheen v Cohen, supra, 37 Cal.4th 1048, 1057.) "Any doubt as to whether the privilege applies is resolved in favor of applying" (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529 [3 Cnl.Intr.2d 49].) This privilege was later expanded to include pleadings, as they are "literally the subject of immunity unde> Civil Code section 47, subdivision (b)." 8 (Calrfornia Physicians'ervice v. Superror Court, szrpra, 9 Cal,App 4th 1321, 1330) 9 In the insurance context, the A~hite court found tlrat only ridiculously low Code of Civil 10 Procedure section 998 Offers to Compromise remain unprotected by the litigation privilege (While, supra, 40 Cal.3d 870, 888.) Thnt court essentially carved out a very limited exception to the litigation privilege, As discussed, szipra, because 8'hite is limited to its facts, and because 13 California courts have not expanded its holding, any post-filing communications and pleadmgs, R 0 allegedly brought by Wawanesa in 13ad Faith, are subject to the litigation privilege (See Civ Q 7~lPg s4 o g 4 Code, 47; Californr'a Physr'crans'ervice v Superior Corirt, szipra, 9 Cal.App.4th 1321, 1330.) -Q ~ $ z5qo ~ Thus, the court should exclude such "evidence" at tiial. 17 D. EVIDENCE OF OR REFERENCE TO WAWANESA'S POST-FILING LITIGATION CONDUCT HAS THK TENDENCY TO CONFUSE AND 18 PRK JUDICE THK JURY, WHILE NECESSITATING UNDUE CONSVMI'TION OF TIME. 19 20 In addition to being irrelevant, evidence of Wawanesa's allegedly impropei post-filing litigation conduct will consume unnecessary time and serve to confuse the jury as to the true issues at hand: whether Wawanesa failed to pay Plaintiff insurance benefits which were due, and 23 whether Wnwanesa was unreasonable in withholding these benefits from Plaintiff Additionally, 24 evidence of and reference to Wawanesa's allegedly impioper post-filing litigation conduct could falsely indicate a continuing course of insurance Bad Faith As such, any discussion of Wawanesn s post-filing litigation conduct will constitute a waste of undue time and money, while 27 serving only to distiact the jury and preludice Wawanesa. Based on the foregoing, the Court must 28 exclude this evidence at trial 8 Exhibit 4 page 4 8 DEFENDANT'S MOTION IN LIMINENO. 3 IV. 2 CONCLUSION 3 For the foregoing reasons. Wawanesa General Insurance Company respectfully requests this Court issue an order excluding and any all evidence of or reference to Wawanesa's allegedly improper post-filing litigation conduct as evidence of continuing Bad Faith. 7 DA'I ED, November 7, 2013 LAW OFFICES 01" KENNETI-IN. GREENFIELD 10 kEA1ETH N. GREENFIELD, ALEXANDRAN. SELFRIDGE, Attorneys for Defendant, WAWANESA GENERAL INSURANCE COMPANY 12 '4 13 oZ(= 14 -Q f 15 c+ 0 0 Q «g 9 o 16 Ql cn 17 18 19 20 21 22 23 24 25 26 27 9 Exhibit 4, Page 4.9 DEI"ENDANT'S MOTION IN LIMINENO. 3 1 Kenneth N. Greenfield, Ksq. (State Bar No. 105721) Alexandra N. Selfridge, Esq. (State Bar No. 247063) 2 I,Aw orrlcr.s of KENNETH N. GR1".ENI"IELD IIERNARDO CEN1 FR DRIVE, SU I I E 210 16%16 SAN DIEGO, CA 92128 (858) 675-0301 FAX (858) 67 5-0319 cele >dgc,c)thcgreenficldlcwfirrn ccrc Attorneys for Defendant, WAWANFSA GENERAL INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 GEORGE MARDI' AN ) Case No. CIV 517132 ) 12 Plaintiff, ) DECLARATIONOF ALEXANDRAN. ) SELFRIDGK IN SUPPORT OF 13 vs. ) WAWANKSAGENERAL INSURANCE ) COMPANY'S MOTION IN LIMINETO 14 WAWANES A GENERAL INSURANCE EXCLUDE EVIDENCE OF ) COMPANY, a corporation, and DOES WAWANKSA'S "LITIGATION 1 ) TACTICS" AS EVIDENCE OF 15 through 50, mclusive ) ALLEGED CON'I"INUINGBAD FAITH ) Defendants. NO. 3 OF 14 17 Tnal Date November 12, 2013 Trial Time 9,00 am Trial Dept PJ ) 19 ) ) Date Piled Octobei 3, 2012 20 ) I, Alexandra. N Selfridge, declare as follows 22 1. I am an attorney duly licensed to practice before all of the courts of the State of 23 California and am an associate with the Law Offices of Ikenneth N, Greenfield, attorneys of record for Defendant Wawanesa General Insurance Company, I have personal Icnowledge of eacll of the following facts and, if called as a witness, could and would testify competently hereto, except as to those matters which are explicitly set forth as based upon my information and belief 27 and, as to such matters, I am informed and believe that they are true and correct. /// Exhibit 4, Page 4.10 DECLARA fION OF ALEXANDRAN. SI.LIRIDGE IN SUPPORT Oi" MIL NO 3 This declaration is made in support of Defendant Wawanesa General Insurance Company's Motion in Limme No. 3. 3. By way of Plaintiffs v, riiicn discovery responses, he repeatedly claims that Wawanesa's discovery reques(s are "designed and served merely to harass and vex plaintiff and to create an unreasonable burden." 4. Plaintiffs February 20, 2013 Case Management Statement alleges that "Ii is anticipated that the clefendani will, no doubt, use discovery abuses as a bad faith tactic in an tactic " attempt to force the plaliiilffio abandon legitimate claims, and Ins Co [sic) 5, On July 15, 2013, Plaintiff's counsel advised me that he intends io introduce 10 eviclence of Wawanesa's supposedly improper Motion io Compel further Discovery Responses and Motion to Compel Responses to Questions not Answered at Deposition (both of which were 12 granted by the Court) at trial as evidence of continuing Bad Faith. IV 13 6. On October 7, 2013, Plaintiffs counsel sent me two separate letters, threatemng to ll g 14 present evidence of Defense counsel's purportedly outrageous litigation conduct at trial as g A V Q,Z() 15 evidence of coniinumg Bad Faith. Plaintiff's allegations of Bad Faith litigation tactics were based oZ o 6 o ~ True correct copies of both ) ~ entirely upon the content of Wawanesa's pleaclings in this case and g K ill O 17 letters are attached hereto as Exhibit l. 18 I declare under penalty of perjury under thc laws of the State of California thai the 19 foregoing is true and correct and thai, thisdeclaration was executed in the City of San Diego, State 20 of California on November ~, 2013 L~< 1 21 AI.EXA"DRA A. SELF'RIDGE, DeclaYe~it- —--- 23 24 25 26 27 Exhibit 4, Page 4.11 DECLARATION or ALEXANDRAN. SELFR1DGE IN SUPPORT OE MiL NO. 3 Exhibit 4, Page 4.12 13ay Law Offices 1235 Casa Palermo Circle Henderson, Nevada 89011 Tel: (208) 280-3766 E-mail. msdayesqNaol.corn October 7, 2013 Ms. Alexandra N. Sel&idge, Attorney Law Offices 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. Selfridge: The accompanying letter is not a settlement offer or any settlement negotiations, Accordingly, it is not intended to be covered by the "White Waiver" nor confidential. It is a demand related to the continuing breach of the covenant of good faith and fair dealing by Wawanesa General Insurance Company that has persisted though the present, specifically the bad faith tactic of assertion and prosecution of the allegation that Mr. Mardikian has committed fraud and misrepresentation in connection with the claim filed against his insurance policy and defendant. Wawanesa General Insurance Company from the beginning of the claim investigation process and throughout this litigation has, in bad faith, continued to make false allegations against Mr. Mardikian, contending that his conduct constituted a willful and deliberate fraud and misrepresentation. With the aid of the Law Offices of Kenneth N. Greenfield and you, and without regard for your ethical duties as an attorney defined by statute, Wawanesa General Insurance Company has continued to use the fraudulent allegations, obviously known by Wawanesa General Insurance Company to be false, as a means of attempting to cause Mr. Mardikian more emotional distress as well as to cause him to abandon his legitimate claim. You, your office, and Wawanesa General Insurance Company, has continued to claim "fraud" against Mr. Mardikian. While you may claim that, such slander and libel is absolutely privileged under the judicial privilege, such outrageous conduct is admissible in this case to show the continuing bad faith and breach of the covenant of good faith and fair dealing by Wawanesa, as well for the consideration by the jury as to the emotional distress such bad faith tactics would have upon Mr, Mardikian. Accordingly, it is my intent to call you, or anyone who may attempt to represent Wawanesa General Insurance Company, as a witness in the continuing misconduct. The pleadings and documents you have filed with this Court, along with the other evidence, will be used in the prosecution of the instant action. Exhibit 4, Page 4.13 Exhibit 1, Page 1.1 Ms, Alexandra N. Selfridge, Attorney October 7, 2013 Page 2 There is no need to go into the law on the subject as you are an attorney, I am aware you have knowledge of the controlling case law, as well as the statutes and law regarding the duties of an attorney with respect to the conduct described. Sincerely yours, Montie S. Day cc: George Mardikian enclosure Exhibit 4, Page 4.14 Exhibit 1, Page 1.2 Day Law Offices 1235 Casa Palermo Circle Henderson, Nevada S9011 Tel: (208) 280-3766 E-mail:msdayesq@aol.corn October 7, 2013 Ms. Alexandra N, Selfridge, Attorney Law Offices 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 letter is a demand related to the continuing breach of the covenant of good faith and fair dealing by Wawanesa General Insurance Company which has persisted though the present, specifically the bad faith tactic of asserting and prosecuting the allegation that Mr. Mardikian has committed fraud and misrepresentation in connection with the claim filed against his insurance policy and defendant. Wawanesa General Insurance Company from the beginning of the claim handling process and throughout this litigation has, in bad faith, continued to make false allegations against Mr. Mardikian contending that his conduct constituted a willful and deliberate fraud and misrepresentations. As you know, during the claim process Wawanesa General Insurance Company alleged that Mr. Mardikian had made material false misrepresentation and committed fraud in connection with the claim under the policy. The allegations made by Wawanesa General Insurance Company were false then, and remain false, but Wawanesa General Insurance Company has persisted in asserting and prosecuting the false allegations of fraud against Mr. Mardikian throughout this litigation. Wawanesa General Insurance Company continues the bad faith tactic disregarding the facts and with full knowledge that the allegations were false and unsupported by any evidence. This was and continues to be a deliberate and willfulcontinuing breach of the covenant of good faith and fair dealing and utilized as an attempt, as it was in the claim process, to cause Mr. Mardikian damages and emotional distress unless he withdraws his claim, In filing the answer to the complaint, an answer prepared by you and verified under the penalties of perjury, Wawanesa General Insurance Company made the same unsubstantiated charges against Mr. Mardikian, and eventually, the allege facts to support the false allegations were set forth in the verified amended answer making these serious charges against Mr. Mardikian. Just to summarize, Wawanesa claimed, Wawanesa General Insurance Company, in the verified amended answer, alleges: Exhibit 4, page 4.15 Exhibit 1, Page 1.3 Ms. Alexandra N. Selfridge, Attorney October 7, 2013 Page 2 FIRST AFFIRMATIVEDEFENSE ...In addition, the loss was excluded from coverage pursuant to the "Fraud and Misrepresentation" provision of the Policy. Although he knew that the vehicle had been involved in a fire loss at the time he added the vehicle to the Policy, Plaintiff concealed that information from Defendant. Although Plaintiff knew that the vehicle had body damage, he concealed that information as well. Plaintiff made misrepresentations regarding the fact that numerous parts were not installed on the vehicle, the purchase price, and the purchase date. Plaintiff attempted to conceal the fact that he had an insurance policy with another insurer for the subject vehicle as well. Plaintiffmay have made misrepresentations as to whether or not the vehicle was actually a replacement vehicle..., SECOND AFFIRMATIVEDEFENSE ...In addition, Plaintiffviolated the "Fraud and Misrepresentation" provision of the Policy. Although he knew that the vehicle had been involved in a fire loss at the time he added the vehicle to the Policy, Plaintiffconcealed that information from Defendant. Although Plaintiff knew that the vehicle had body damage, he concealed that information as well. Plaintiff made misrepresentations regarding the fact that numerous parts were not installed on the vehicle, the purchase price, and the purchase date. Plaintiff attempted to conceal the fact that he had an insurance policy with another insurer for the subject vehicle as well. Plaintiffmay have made misrepresentations as to whether or not the vehicle was actually a replacement vehicle. In addition, Plaintiff failed to comply with the "Duties after an Accident or a Loss" provision of the Policy. When he reported the loss, Plaintiffdid not accurately state when the loss happened. Plaintiff repeatedly failed to cooperate in the investigation of the underlying claim by refusing to speak with Peter Brown, declining to give a second recorded statement, and resisting the taking of his Examination Under Oath. As a result, it became necessary for Defendant to hire coverage counsel to obtain Plaintiffs Examination Under Oath. When Defendant lawfully accessed Plaintiffs DMV records, Plaintiff accused Defendant of engaging in improper behavior, rather than authorizing Defendant to obtain those pertinent records. As discovery is ongoing, there may be additional facts which support Defendant's Second Affirmative Defense, and Defendant expressly reserves the right to supplement this defense. FIFTH AFFIRMATIVEDEFENSE This answering Defendant is informed and believes and thereon alleges that the Complaint, and each and every cause of action or purported cause of action contained therein, is barred by the Doctrine of Unclean Hands. Although Plaintiff knew that the subject vehicle had been involved in a fire loss at the time he added the vehicle to the Policy, he concealed that information from Defendant. Although Plaintiff knew that the vehicle had body damage, he concealed that information as well. Plaintiffmade misrepresentations regarding the fact that numerous parts were not installed on the vehicle, the purchase price, and the purchase date, Plaintiffattempted to conceal the fact Exhibit 4 Page 4 16 Exhibit 1, Page 1.4 Ms, Alexandra N. Selfridge, Attorney October 7, 2013 Page 3 that he had an insurance policy with another insurer for the subject vehicle as well. Plaintiffmay have made misrepresentations as to whether or not the vehicle was actually a replacement vehicle„,. SEVENTH AFFIRMATIVEDEFENSE NINTH AFFIRMATIVEDEFENSE This answering Defendant is informed and believes and thereon alleges that, at all times mentioned within Plaintiff s Complaint, and based upon all of the facts of Plaintiff s insurance claim, Plaintiffs insurance claim was excluded from coverage under the following insurance policy language: FRAUD AND MISREPRESENTATION Coverage is not provided to any person who knowingly conceals or misrepresents any material fact or circumstance relating to this insurance: 1. At the time application is made; or 2. At any time during the policy period; or 3. In connection with the presentation, investigation or settlement of a claim. Although he knew that the subject vehicle had b