On October 28, 2009 a
Motion,Ex Parte
was filed
involving a dispute between
Chang, Michael,
and
Farmers Group, Inc,
Farmers Group, Inc., A California Corp,
Farmers Insurance Company, Inc,
Farmers Insurance Company, Inc. A California Corporation,
Farmers Insurance Exchange Insurance Exchange,
Truck Insurace Exchange,
for (18) Unlimited Insurance Coverage
in the District Court of San Mateo County.
Preview
Gregg S. Garrison (SBN 141653)
GARRISON LAW CORPORATION
161 Cortez
Half Moon Bay,
Avenue
CA 94019
FKI.KB
SAN MATEO COUg~
Telephone: 805.857.9300
JUN gg1)
Herman I. Kalfen (SBN 160592) C l
KALFEN LAW CORPORATION
1 Embarcadero Center, Suite 500
San Francisco, CA 94111
Telephone: 415.315.1710
Facsimile: 415.433.5992
Attorneys for Plaintiff MICHAELCHANG, an individual dba Sunrise Cleaners
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SAN MATEO
12
13
Case No. CIV 489065
14 MICHAEL CHANG, an individual,
15 Plaintiff,
PLAINTIFF MICHAELCHANG'S
16 V. OBJECTION TO DEFENDANT FARMERS
17
SECOND EX PARTE APPLICATION FOR
FARMERS INSURANCE EXCHANGE AND ORDER TO SHORTEN TIME TO BRING A
18 SECOND MOTION FOR A CONTINUANCE
TRUCK INSURANCE EXCHANGE, OF TRIAL DATE
19
reciprocal inter-insurance exchanges, et al.,and
20 Hearing Date: June 26, 2013
Does 1 through 20, Time: 2:00 p.m.
Department: Ex-Parte
22 Defendants.
23 Complaint filed: October 28, 2009
24
25
26 ~ I ~
27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for
Second Motion for Continuance
Plaintiff Michael Chang submits the following objection to Farmers Insurance'econd
Ex Parte Application for an Order to Shorten time for a second Continuance of Trial Date.
3
Introduction
4
We most vigorously oppose all on multiple important grounds. Granting a continuance
5
would cause great hardship on Plaintiff. Plaintiff wishes full time provided by the Code of Civil
6
Procedure for a Noticed Motion. Farmers continues to use all tactics to delay the matter and
8 avoid trial. Farmers has shown no reason that it should get a continuance. Granting the herein
9 Order would be prejudicial to Plaintiff. Plaintiff Michael Chang will continue to suffer until
Farmers is brought to trial on the merits as shown herein.
11
Background
12
This action was brought by Michael Chang against Farmers on October 28, 2009 out of
13
necessity, since Farmers failed to cover what isclearly covered under the plain language of the
14
policy. Farmers has lost two Summary Judgment Motions, and Farmers lost an Appeal of the
denial of Summary Judgment on this issue.
17 Farmer's letter dated June 5'013 admitted that "the trial court has denied the
Insurers'otion
for Summary Judgment on the coverage issues finding a question of fact exists." Again,
19
we remind that all that is required to give rise to Farmers'uty to defend is the existence a
20
potentially covered claim. The existence of a question of fact is another way of saying there is a
21
potentially covered claim. In addition, as stated in Farmers June 5, 2013 letter, has "agreed to
22
provide a defense for the Kartal action, subject to their reservation of rights."'espite this,
23
24
25
'laintiffs'ounsel in the underlying Kartal actionhave submitted invoices to Farmers, including to the coverage
counsel for Farmers who drafted the Farmers Reservation of Rights letters.
26 ~ 2 ~
27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for
I
Second Motion for Continuance
l
Katfao Lma.tatatmratloo
m
oaa» KaltaoLoot:orp.corn
1
1 Farmers has failed to pay defense obligations. Further, attorney Peers Declaration herein states
falsely that Farmers has paid its defense obligation. This is false, as shown below.
False and Misleading Declaration bv Attornev Peers filed Herein — Misleading in Several
4
Substantive Wavs
5
Farmers instant Declaration signed by attorney Peers, and the related Motion is false and
6
misleading in several ways. Farmers attorney John Peers states, under penalty of perjury that
As an attorney representing Farmers with regard to this matter, I was provided
with a copy of the April 24, 2013 letter by which Farmers agreed to defend Chang
and to reimburse past unpaid defense expenses in the agreed to amount of
$ 147,758.60. [Peer Declaration in Support of Motion for Continuance signed
10 6.24.13 at page 2, lines 14-16]
11
The Peers Declaration filed with the instant Application is false in several significant
12
material ways. Overall, it falsely implies that the parties have an agreement and also agreed to
13
14 an amount. That is not true. Farmers simply finally paid defense invoices and costs related to
15 the site from 2008. This was not per agreement; it was simply the Farmers Defense obligation.
It is simply part of the amount that Farmers had a duty to pay under the policy, long past due.
17
Second, the Declaration falsely implies that the total amount that Farmers owed Plaintiff
18
was $ 147,758.60. That isalso false. In fact, Plaintiff is owed still for 2009, 2010, 2011, 2012,
19
and current, all very past due. The Peers Declaration misleads to make it appear that all of the
20
past due amounts total $ 147,758.60, which is false. In fact, this is only regarding 2008 past due
that was finally paid by Farmers. In fact, Farmers has only paid a small portion of the past due
23 defense amounts. Unfortunately, Farmers has failed to pay other prior and current invoices, all
24
25
26 ~ 3 ~
27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for
Second Motion for Continuance
A
Kalfch Law Qlfpagstlos
inn'al(cnLn~ sa
inn'.KalfeN.owCarp
corn
1 depositions set for later this week and next week of the Changs. Further, Farmers has done
2 Requests for Production, Requests for Admissions, and Special Interrogatories Sets 1,2 and 3 and
3
Supplemental Interrogatories.
Conclusion
Plaintiff simply wants the full time allotted under the Code for a Noticed Motion on this
most important matter. Farmers has offered no compelling reason why this matter should not be
8 heard on regular time, nor have they offered any compelling reason for a continuance. All
9 factors dictate against granting Farmers Application herein for an Order shortening time to bring
a Motion for continuance. Farmers is only acting to delay. This is to great harm of Plaintiff and
11
should not be allowed.
12
13
Respectfully Submitted:
14
15 DATED:
16
17
BY: KALFEN LAW CORPORATION
18
19
20
Herm+4.)Cnlfen, JD, REA, NAEP
21 Attorney for Michael Chang
22
23
24
25
26 ~ 7 ~
~-~ 27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for
,!
Second Motion for Continuance
csf4
l
11S31$111cn
naan
1: alfcnLawr.arp
cnm
Preview
Gregg S. Garrison (SBN 141653) GARRISON LAW CORPORATION 161 Cortez Half Moon Bay, Avenue CA 94019 FKI.KB SAN MATEO COUg~ Telephone: 805.857.9300 JUN gg1) Herman I. Kalfen (SBN 160592) C l KALFEN LAW CORPORATION 1 Embarcadero Center, Suite 500 San Francisco, CA 94111 Telephone: 415.315.1710 Facsimile: 415.433.5992 Attorneys for Plaintiff MICHAELCHANG, an individual dba Sunrise Cleaners SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 12 13 Case No. CIV 489065 14 MICHAEL CHANG, an individual, 15 Plaintiff, PLAINTIFF MICHAELCHANG'S 16 V. OBJECTION TO DEFENDANT FARMERS 17 SECOND EX PARTE APPLICATION FOR FARMERS INSURANCE EXCHANGE AND ORDER TO SHORTEN TIME TO BRING A 18 SECOND MOTION FOR A CONTINUANCE TRUCK INSURANCE EXCHANGE, OF TRIAL DATE 19 reciprocal inter-insurance exchanges, et al.,and 20 Hearing Date: June 26, 2013 Does 1 through 20, Time: 2:00 p.m. Department: Ex-Parte 22 Defendants. 23 Complaint filed: October 28, 2009 24 25 26 ~ I ~ 27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for Second Motion for Continuance Plaintiff Michael Chang submits the following objection to Farmers Insurance'econd Ex Parte Application for an Order to Shorten time for a second Continuance of Trial Date. 3 Introduction 4 We most vigorously oppose all on multiple important grounds. Granting a continuance 5 would cause great hardship on Plaintiff. Plaintiff wishes full time provided by the Code of Civil 6 Procedure for a Noticed Motion. Farmers continues to use all tactics to delay the matter and 8 avoid trial. Farmers has shown no reason that it should get a continuance. Granting the herein 9 Order would be prejudicial to Plaintiff. Plaintiff Michael Chang will continue to suffer until Farmers is brought to trial on the merits as shown herein. 11 Background 12 This action was brought by Michael Chang against Farmers on October 28, 2009 out of 13 necessity, since Farmers failed to cover what isclearly covered under the plain language of the 14 policy. Farmers has lost two Summary Judgment Motions, and Farmers lost an Appeal of the denial of Summary Judgment on this issue. 17 Farmer's letter dated June 5'013 admitted that "the trial court has denied the Insurers'otion for Summary Judgment on the coverage issues finding a question of fact exists." Again, 19 we remind that all that is required to give rise to Farmers'uty to defend is the existence a 20 potentially covered claim. The existence of a question of fact is another way of saying there is a 21 potentially covered claim. In addition, as stated in Farmers June 5, 2013 letter, has "agreed to 22 provide a defense for the Kartal action, subject to their reservation of rights."'espite this, 23 24 25 'laintiffs'ounsel in the underlying Kartal actionhave submitted invoices to Farmers, including to the coverage counsel for Farmers who drafted the Farmers Reservation of Rights letters. 26 ~ 2 ~ 27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for I Second Motion for Continuance l Katfao Lma.tatatmratloo m oaa» KaltaoLoot:orp.corn 1 1 Farmers has failed to pay defense obligations. Further, attorney Peers Declaration herein states falsely that Farmers has paid its defense obligation. This is false, as shown below. False and Misleading Declaration bv Attornev Peers filed Herein — Misleading in Several 4 Substantive Wavs 5 Farmers instant Declaration signed by attorney Peers, and the related Motion is false and 6 misleading in several ways. Farmers attorney John Peers states, under penalty of perjury that As an attorney representing Farmers with regard to this matter, I was provided with a copy of the April 24, 2013 letter by which Farmers agreed to defend Chang and to reimburse past unpaid defense expenses in the agreed to amount of $ 147,758.60. [Peer Declaration in Support of Motion for Continuance signed 10 6.24.13 at page 2, lines 14-16] 11 The Peers Declaration filed with the instant Application is false in several significant 12 material ways. Overall, it falsely implies that the parties have an agreement and also agreed to 13 14 an amount. That is not true. Farmers simply finally paid defense invoices and costs related to 15 the site from 2008. This was not per agreement; it was simply the Farmers Defense obligation. It is simply part of the amount that Farmers had a duty to pay under the policy, long past due. 17 Second, the Declaration falsely implies that the total amount that Farmers owed Plaintiff 18 was $ 147,758.60. That isalso false. In fact, Plaintiff is owed still for 2009, 2010, 2011, 2012, 19 and current, all very past due. The Peers Declaration misleads to make it appear that all of the 20 past due amounts total $ 147,758.60, which is false. In fact, this is only regarding 2008 past due that was finally paid by Farmers. In fact, Farmers has only paid a small portion of the past due 23 defense amounts. Unfortunately, Farmers has failed to pay other prior and current invoices, all 24 25 26 ~ 3 ~ 27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for Second Motion for Continuance A Kalfch Law Qlfpagstlos inn'al(cnLn~ sa inn'.KalfeN.owCarp corn 1 depositions set for later this week and next week of the Changs. Further, Farmers has done 2 Requests for Production, Requests for Admissions, and Special Interrogatories Sets 1,2 and 3 and 3 Supplemental Interrogatories. Conclusion Plaintiff simply wants the full time allotted under the Code for a Noticed Motion on this most important matter. Farmers has offered no compelling reason why this matter should not be 8 heard on regular time, nor have they offered any compelling reason for a continuance. All 9 factors dictate against granting Farmers Application herein for an Order shortening time to bring a Motion for continuance. Farmers is only acting to delay. This is to great harm of Plaintiff and 11 should not be allowed. 12 13 Respectfully Submitted: 14 15 DATED: 16 17 BY: KALFEN LAW CORPORATION 18 19 20 Herm+4.)Cnlfen, JD, REA, NAEP 21 Attorney for Michael Chang 22 23 24 25 26 ~ 7 ~ ~-~ 27 Plaintiff Michael Chang's Opposition to Farmer's Second Ex Parte Application for Order Shortening Time for ,! Second Motion for Continuance csf4 l 11S31$111cn naan 1: alfcnLawr.arp cnm