This case was last updated from Los Angeles County Superior Courts on 06/19/2019 at 00:55:25 (UTC).

HAMIDREZA GHASEMI VS. BANKERS LIFE AND CASUALTY COMPANY

Case Summary

On 04/13/2017 HAMIDREZA GHASEMI filed a Contract - Insurance lawsuit against BANKERS LIFE AND CASUALTY COMPANY. This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judge overseeing this case is MELVIN D. SANDVIG. The case status is Pending - Other Pending.
Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****7690

  • Filing Date:

    04/13/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MELVIN D. SANDVIG

 

Party Details

Plaintiff

GHASEMI HAMIDREZA

Defendants

BANKERS LIFE AND CASUALTY COMPANY

BABAEIAN MOHSEN

LEWIS BRISBOIS BISGAARD & SMITH LLP

FARMER CASE HACK & FEDOR

Attorney/Law Firm Details

Plaintiff Attorney

BARRINGTON LEGAL INC

Defendant Attorneys

CASE ANTHONY THOMAS

BARTON NICHOLAS

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 06/07/2019
  • DocketResponse (to OSC (Status Update)); Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 06/07/2019
  • DocketDeclaration (of Nicholas Barton); Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 06/07/2019
  • DocketMotion for Order (Declaratory Relief); Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 06/07/2019
  • DocketProof of Service by Mail; Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 06/07/2019
  • DocketDeclaration (of Def. Mohsen Babaeian); Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 05/16/2019
  • Docketat 08:30 AM in Department F47, Melvin D. Sandvig, Presiding; Order to Show Cause Re: (Sanctions/Dismissal and/or Striking Answer and Entering Defaults for Parties FTA to FSC) - Not Held - Rescheduled by Party

    [+] Read More [-] Read Less
  • 05/15/2019
  • DocketNotice of Appearance (OF NICHOLAS BARTON AS COUNSEL FOR DEFENDANT MOHSEN BABAEIAN); Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 05/14/2019
  • DocketNotice (Notice of Continuance of OSC Hearing); Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 05/09/2019
  • DocketDeclaration (Declaration of Joseph C. Campo in Support of Continuance of OSC); Filed by MOHSEN BABAEIAN (Defendant)

    [+] Read More [-] Read Less
  • 05/06/2019
  • DocketDeclaration (DECLARATION OF SCOTT D. DYLE IN SUPPORT OF CONTINUING THE ORDER TO SHOW CAUSE HEARING RE SETTLEMENT AND FINAL STATUS CONFERENCE); Filed by HAMIDREZA GHASEMI (Plaintiff)

    [+] Read More [-] Read Less
153 More Docket Entries
  • 04/21/2017
  • DocketDeclaration; Filed by HAMIDREZA GHASEMI (Plaintiff)

    [+] Read More [-] Read Less
  • 04/21/2017
  • DocketProof of Service (not Summons and Complaint); Filed by HAMIDREZA GHASEMI (Plaintiff)

    [+] Read More [-] Read Less
  • 04/21/2017
  • DocketProof of Service (not Summons and Complaint); Filed by HAMIDREZA GHASEMI (Plaintiff)

    [+] Read More [-] Read Less
  • 04/17/2017
  • DocketProof of Service (not Summons and Complaint); Filed by HAMIDREZA GHASEMI (Plaintiff)

    [+] Read More [-] Read Less
  • 04/13/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    [+] Read More [-] Read Less
  • 04/13/2017
  • DocketComplaint filed-Summons Issued; Filed by null

    [+] Read More [-] Read Less
  • 04/13/2017
  • DocketSummons; Filed by null

    [+] Read More [-] Read Less
  • 04/13/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

    [+] Read More [-] Read Less
  • 04/13/2017
  • DocketCivil Case Cover Sheet; Filed by HAMIDREZA GHASEMI (Plaintiff)

    [+] Read More [-] Read Less
  • 07/13/2013
  • DocketDeclaration

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****7690 Hearing Date: March 2, 2022 Dept: F47

Dept. F-47

Date: 3/2/22 TRIAL DATE: 4/4/22

Case #****7690

MOTION TO STRIKE

Motion filed on 2/4/22.

MOVING PARTY: Defendant Moshen Babaeian

RESPONDING PARTY: Plaintiff Hamidreza Ghasemi

NOTICE: ok

RELIEF REQUESTED: An order striking Plaintiff’s prayer/request for general damages, including humiliation, mental anguish, and emotional distress (Compl. p.9, Prayer b).

RULING: The motion is denied.

This action arises out of a dispute as to whether a disability insurance policy purchased by

Plaintiff/Cross-Defendant Hamidrez Ghasemi (Plaintiff) from Defendant/Cross-Complainant Bankers Life and Casualty Company (Bankers Life) provided benefits for five years or up until Plaintiff reached the age of 65. Although Plaintiff executed a form changing the benefit period to five years from “to age 65” as requested in his application, Plaintiff contends that Defendant Mohsen Babaeian (Babaeian), a Bankers Life insurance agent, acted as his interpreter and misrepresented that the policy provided benefits to age 65.

In 2011, Plaintiff was declared disabled. Bankers Life paid benefits for five years. When Bankers Life stopped paying under the policy, Plaintiff filed this action for: (1) fraud, (2) negligent misrepresentation, (3) reformation, (4) negligence, (5) breach of contract, (6) breach of implied obligation of good faith and fair dealing, (7) declaratory relief and (8) violation of Business & Professions Code Section 17200.

Bankers Life contends that Plaintiff’s claim submissions contained material misrepresentations and concealments; therefore, Bankers Life filed a cross-complaint against Plaintiff. The operative First Amended Cross-Complaint contains causes of action for: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing; (3) intentional misrepresentation/concealment, (4) negligent misrepresentation, (5) declaratory judgment/no loss of earnings, (6) declaratory judgment/rescission and (7) restitution for unjust enrichment.

Plaintiff and Bankers Life have settled and the Court found their settlement to be in good faith. (See 1/26/22 Minute Order). The case is scheduled to proceed to trial on 4/4/22 between Plaintiff and Babaeian. On 2/4/22, Babaeian filed the instant motion seeking to strike Plaintiff’s prayer/request for general damages, including humiliation, mental anguish, and emotional distress. Plaintiff has opposed the motion.

The motion is untimely. A party may serve and file a motion to strike “within the time allowed to respond to a pleading.” CCP 435(b)(1); CRC 3.1322(b). Babaeian responded to Plaintiff’s complaint by filing and serving his answer on 5/17/17. To the extent Babaeian relies on CCP 436, which provides that the court may strike matter in a pleading, pleadings or portions of pleadings “at any time in its discretion” such reliance is misplaced as that portion of the statute refers the court striking matter on its own motion. See CCP 436. Based on the foregoing, there is no basis for Babaeian, a party to the action, to file and serve this motion to strike approximately four and a half years later after he responded to the complaint.

Even if the motion had been timely filed, it fails.

The instant motion appears to be an improper attempt to obtain summary judgment/adjudication without complying with the requirements for such a motion. See CCP 437c; CRC 3.1350. Further, such a request would be improper for the additional reason that Babaeian previously filed a motion for summary judgment, or in the alternative, summary adjudication which was denied by the Court on 2/22/18. (See 2/22/18 Minute Order).

The grounds for a motion to strike must appear on the face of the pleading or from matter which the court may judicially notice. CCP 437. Babaeian has failed to establish that Plaintiff cannot recover general damages, including humiliation, mental anguish, and emotional distress as a matter of law based on the face of the pleading or matters of which the Court may take judicial notice. Id.

The parties are, again, reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. See also CRC 3.1110(f)(4). Babaeian has failed to bookmark the declaration and exhibits attached to the motion and reply and Plaintiff has failed to bookmark the exhibits attached to the declaration of Eamon Jafari. Failure to comply with these requirements in the future may result in matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.



Case Number: ****7690 Hearing Date: February 25, 2022 Dept: F47

Dept. F-47

Date: 2/25/22 TRIAL DATE: 4/4/22

Case #****7690

MOTION TO STRIKE

Motion filed on 1/31/22.

MOVING PARTY: Defendant Moshen Babaeian

RESPONDING PARTY: Plaintiff Hamidreza Ghasemi

NOTICE: ok

RELIEF REQUESTED: An order striking Plaintiff’s prayer/request for punitive damages.

RULING: The motion is denied.

This action arises out of a dispute as to whether a disability insurance policy purchased by

Plaintiff/Cross-Defendant Hamidrez Ghasemi (Plaintiff) from Defendant/Cross-Complainant Bankers Life and Casualty Company (Bankers Life) provided benefits for five years or up until Plaintiff reached the age of 65. Although Plaintiff executed a form changing the benefit period to five years from “to age 65” as requested in his application, Plaintiff contends that Defendant Mohsen Babaeian (Babaeian), a Bankers Life insurance agent, acted as his interpreter and misrepresented that the policy provided benefits to age 65.

In 2011, Plaintiff was declared disabled. Bankers Life paid benefits for five years. When Bankers Life stopped paying under the policy, Plaintiff filed this action for: (1) fraud, (2) negligent misrepresentation, (3) reformation, (4) negligence, (5) breach of contract, (6) breach of implied obligation of good faith and fair dealing, (7) declaratory relief and (8) violation of Business & Professions Code Section 17200.

Bankers Life contends that Plaintiff’s claim submissions contained material misrepresentations and concealments; therefore, Bankers Life filed a cross-complaint against Plaintiff. The operative First Amended Cross-Complaint contains causes of action for: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing; (3) intentional misrepresentation/concealment, (4) negligent misrepresentation, (5) declaratory judgment/no loss of earnings, (6) declaratory judgment/rescission and (7) restitution for unjust enrichment.

Plaintiff and Bankers Life have settled and the Court found their settlement to be in good faith. (See 1/26/22 Minute Order). The case is scheduled to proceed to trial on 4/4/22 between Plaintiff and Babaeian. On 1/31/22, Babaeian filed the instant motion seeking to strike Plaintiff’s prayer/request for punitive damages. Plaintiff has opposed the motion.

Plaintiff’s Request for Judicial Notice (RJN) is granted.

Plaintiff’s objections, numbers 1-2, to the declaration of Robert Shiri are sustained.

The Court notes that Plaintiff disputes whether Babaeian’s counsel adequately met and conferred on the issue of punitive damages before filing the instant motion. Babaeian’s counsel refers to emails he purportedly sent on the issue which he claims are attached to his declaration as Exhibit A. (See Shiri Decl. 4). However, no exhibit/emails are attached to the declaration. (See Plaintiff’s Evidentiary Objection No. 2). The failure to adequately meet and confer is not a basis to grant or deny a motion to strike. See CCP 435.5(a)(4). The Court’s denial of the motion is not based on any failure to meet and confer.

The motion is untimely. A party may serve and file a motion to strike “within the time allowed to respond to a pleading.” CCP 435(b)(1); CRC 3.1322(b). Babaeian responded to Plaintiff’s complaint by filing and serving his answer on 5/17/17. (RJN, Ex.B and eCourt). Babaeian’s reliance CCP 436, which provides that the court may strike matter in a pleading, pleadings or portions of pleadings “at any time in its discretion” is misplaced as that portion of the statute refers the court striking matter on its own motion. See CCP 436. Based on the foregoing, there is no basis for Babaeian, a party to the action, to file and serve this motion to strike approximately four and a half years later after he responded to the complaint.

Additionally, the motion fails to include a notice of motion as required by CRC 3.1322(a) which provides:

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.”

See also CRC 3.1112(a)(1).

Even if the foregoing procedural defects did not exist, the motion fails. The grounds for a motion to strike must appear on the face of the pleading or from matter which the court may judicially notice. CCP 437. Babaeian has failed to establish that Plaintiff cannot recover punitive damages as a matter of law based on the face of the pleading or matters of which the Court may take judicial notice. Id.

Civil Code 3294(a) provides:

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (emphasis added)

Plaintiff’s complaint contains a cause of action for fraud against Babaeian. (See Complaint filed 4/13/17, 1st cause of action). As such, on its face, Plaintiff’s complaint alleges a sufficient basis to support the prayer for punitive damages. Civil Code 3294(a). It appears that Babaeian is attempting to improperly use a motion to strike to summarily adjudicate Plaintiff’s claim for punitive damages without following the procedures required for a motion for summary adjudication. See CCP 437c; CRC 3.1350. In the reply, Babaeian seems to be attempting to make an improper and untimely attack on Plaintiff’s fraud cause of action and conflates the definition of fraud and malice. (See Reply, p.3:10-p.7:1). Babaeian previously made a motion for summary judgment, or in the alternative summary adjudication (which did not seek to adjudicate the issue of punitive damages), which was denied on 2/22/18. (RJN, Ex.C; 2/22/18 Minute Order). As such, there is no basis for Babaeian seeking to strike or summarily adjudicate the prayer for punitive damages at this stage in the proceedings.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. See also CRC 3.1110(f)(4). Babaeian has failed to bookmark the declaration and exhibits attached to the reply and Plaintiff has failed to bookmark the exhibits attached to the declaration of Eamon Jafari. Failure to comply with these requirements in the future may result in matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.



Case Number: ****7690 Hearing Date: February 24, 2022 Dept: F47

Dept. F-47

Date: 2/24/22 TRIAL DATE: 4/4/22

Case #****7690

MOTION TO STRIKE

Motion filed on 1/25/22.

MOVING PARTY: Defendant Moshen Babaeian

RESPONDING PARTY: Plaintiff Hamidreza Ghasemi

NOTICE: ok

RELIEF REQUESTED: An order striking Plaintiff’s request for attorney fees.

RULING: The motion is denied.

This action arises out of a dispute as to whether a disability insurance policy purchased by

Plaintiff/Cross-Defendant Hamidrez Ghasemi (Plaintiff) from Defendant/Cross-Complainant Bankers Life and Casualty Company (Bankers Life) provided benefits for five years or up until Plaintiff reached the age of 65. Although Plaintiff executed a form changing the benefit period to five years from “to age 65” as requested in his application, Plaintiff contends that Defendant Mohsen Babaeian (Babaeian), a Bankers Life insurance agent, acted as his interpreter and misrepresented that the policy provided benefits to age 65.

In 2011, Plaintiff was declared disabled. Bankers Life paid benefits for five years. When Bankers Life stopped paying under the policy, Plaintiff filed this action for: (1) fraud, (2) negligent misrepresentation, (3) reformation, (4) negligence, (5) breach of contract, (6) breach of implied obligation of good faith and fair dealing, (7) declaratory relief and (8) violation of Business & Professions Code Section 17200.

Bankers Life contends that Plaintiff’s claim submissions contained material misrepresentations and concealments; therefore, Bankers Life filed a cross-complaint against Plaintiff. The operative First Amended Cross-Complaint contains causes of action for: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing; (3) intentional misrepresentation/concealment, (4) negligent misrepresentation, (5) declaratory judgment/no loss of earnings, (6) declaratory judgment/rescission and (7) restitution for unjust enrichment.

Plaintiff and Bankers Life have settled and the Court found their settlement to be in good faith. (See 1/26/22 Minute Order). The case is scheduled to proceed to trial on 4/4/22 between Plaintiff and Babaeian. On 1/25/22, Babaeian filed the instant motion seeking to strike Plaintiff’s request for attorney fees. Plaintiff has opposed the motion.

The motion is untimely. Babaeian concedes that a party may serve and file a motion to strike “within the time allowed to respond to a pleading.” (See Motion, p.4:17-19 citing CCP 435(b)(1) and CRC 3.1322(b)). Babaeian responded to Plaintiff’s complaint by filing his answer on 5/17/17. To the extent Babaeian relies on CCP 436, it is only the court which may strike matter in a pleading, pleadings or portions of pleadings “at any time in its discretion.” See CCP 436. Based on the foregoing, there is no basis for Babaeian, a party to the action, to file and serve this motion to strike approximately four and a half years later after he responded to the complaint. Babaeian’s reference to the prayer for attorney fees being “last minute contentions” is without merit as the prayer has been in the complaint since it was filed on 4/13/17. (See Reply, p.2:10; Complaint, p.10:2).

Additionally, the motion fails to include a notice of motion as required by CRC 3.1322(a) which provides:

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.”

See also CRC 3.1112(a)(1).

Even if the foregoing procedural defects did not exist, the motion fails. The grounds for a motion to strike must appear on the face of the pleading or from matter which the court may judicially notice. CCP 437. Babaeian has failed to establish that Plaintiff cannot recover attorney fees as a matter of law based on the face of the pleading or matters of which the Court may take judicial notice. Id.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. See also CRC 3.1110(f)(4). Babaeian has failed to bookmark the declaration and exhibits attached to the reply and Plaintiff has failed to bookmark the exhibits attached to the declaration of Eamon Jafari. Failure to comply with these requirements in the future may result in matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.



Case Number: ****7690 Hearing Date: January 26, 2022 Dept: F47

Dept. F-47

Date: 1 26/22 TRIAL DATE: 4/4/22

Case #****7690

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Motion filed on 12/23/21.

MOVING PARTY: Defendant/Cross-Complainant Bankers Life and Casualty Company

RESPONDING PARTY: Defendant Moshen Babaeian

NOTICE: ok

RELIEF REQUESTED: An order finding the settlement entered between Defendant/Cross-Complainant Bankers Life and Casualty Company and Plaintiff/Cross-Defendant Hamidreza Ghasemi to be in good faith pursuant to CCP 877.6.

RULING: The motion is granted.

FACTUAL & PROCEDURAL HISTORY

This action arises out of a dispute as to whether a disability insurance policy purchased by

Plaintiff/Cross-Defendant Hamidrez Ghasemi (Plaintiff) from Defendant/Cross-Complainant Bankers Life and Casualty Company (Bankers Life) provided benefits for five years or up until Plaintiff reached the age of 65. Although Plaintiff executed a form changing the benefit period to five years from “to age 65” as requested in his application, Plaintiff contends that Defendant Mohsen Babaeian (Babaeian), a Bankers Life insurance agent, acted as his interpreter and misrepresented that the policy provided benefits to age 65.

In 2011, Plaintiff was declared disabled. Bankers Life paid benefits for five years. When Bankers Life stopped paying under the policy, Plaintiff filed this action for: (1) fraud, (2) negligent misrepresentation, (3) reformation, (4) negligence, (5) breach of contract, (6) breach of implied obligation of good faith and fair dealing, (7) declaratory relief and (8) violation of Business & Professions Code Section 17200.

Bankers Life contends that Plaintiff’s claim submissions contained material misrepresentations and concealments; therefore, Bankers Life filed a cross-complaint against Plaintiff. The operative First Amended Cross-Complaint contains causes of action for: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing; (3) intentional misrepresentation/concealment, (4) negligent misrepresentation, (5) declaratory judgment/no loss of earnings, (6) declaratory judgment/rescission and (7) restitution for unjust enrichment.

In March 2019, Plaintiff and Bankers Life believed that a global settlement had been

reached among all parties to this case, including Babaeian. (Cotter Decl. 9). That attempted global settlement agreement provided for a total payment of $124,500 from Bankers Life and Babaeian to Plaintiff in exchange for a release and dismissal with prejudice of all claims. (Id., Ex.C). Ultimately, Babaeian refused to sign the global settlement agreement due to a FINRA U4

reporting dispute unrelated to the merits of Plaintiff’s claims. (Cotter Decl. 10). As a result, the March 2019 settlement fell through. (See Cotter Decl. 10-11).

In July 2021, Plaintiff deposed Bankers Life’s accounting/damages expert, Dr. Barbara

Luna, who testified that Plaintiff’s damages were zero and that the amount of Bankers Life’s

overpayment to Plaintiff was $84,000 (according to Plaintiff’s deposition testimony) or $44,703

(according to Plaintiff’s tax returns). (Cotter Decl. 12, Ex.E). Plaintiff does not have any counter-expert on this issue.

In September 2021, Plaintiff produced a 2020 tax return, which shows that he is “disabled”

and received $38,831 in “Social security benefits.” (Cotter Decl. 13, Ex.F). Payment specifics are unknown; however, it appears that such a large payment amount included some back benefits (i.e., benefits for 2019, 2018). According to the terms of the policy, the maximum monthly benefit of $2,000 per month is reduced, dollar-for-dollar, for any Social Security Disability benefits received, with the maximum reduction being 75%. (Cotter Decl. 14, Ex.G at PL000018-PL000019).

Based on the foregoing, Plaintiff could be entitled to benefits totaling $246,000 if he is successful on all of his claims. However, Plaintiff would have to overcome the Change Form, prove his eligibility for full benefits since 2016, and prove his eligibility for full benefits five years into the future. Plaintiff would also have to overcome Bankers Life’s cross-claims related to overpayment (approximately $84,000), which cross-claims could also result in rescission of the policy making it void ab initio. As such, proceeding to trial presents risks to both Bankers Life and Plaintiff.

On 11/3/21, Plaintiff and Bankers Life reached a settlement of all claims between them. (Cotter Decl. 4, Ex.A). Pursuant to the proposed settlement, Plaintiff will accept payment of $77,500 and a release of all claims by Bankers Life, including its approximately $84,000 cross-claim related to overpayment, in exchange for a release of all claims against Bankers Life. (See Cotter Decl., Ex.A). Additionally, all claims between the Settling Parties would be dismissed with prejudice. Id.

Bankers Life now moves for an order finding the settlement entered between it and Plaintiff to be in good faith pursuant to CCP 877.6. Babaeian has opposed the motion. Despite the opposition being filed and served one day late, it was considered by the Court. See CCP 1005(b); CRC 3.1300(d).

ANALYSIS

In determining whether a settlement was entered in good faith pursuant to CCP 877.6, the Court considers several factors: (1) A rough approximation of the plaintiff’s total recovery and the settlor’s proportionate liability; (2) The amount paid in settlement; (3) A recognition that a settlor should pay less in settlement than if found liable at trial; (4) The allocation of the settlement proceeds among the plaintiffs; (5) The settlor’s financial condition and insurance policy limits, if any; and (6) Evidence of any collusion, fraud, tortious conduct between the settlor and the plaintiff aimed at making the non-settling parties pay more than their fair share. See Tech-Bilt, Inc. (1985) 38 C3d 488, 499.

Based on the foregoing factors, the Court finds that the proposed settlement between Plaintiff and Bankers Life was entered in good faith.

Based on the facts set forth above regarding the prior settlement sum accepted by Plaintiff, the information obtained through discovery thereafter and Babaeian’s claim that Plaintiff has no case as his claims are based on fraud, the Court finds that the settlement amount of $77,500 and a release of all claims Bankers Life has against Plaintiff is reasonable and “within the ballpark” of Bankers Life’s proportionate share of liability for any potential recovery by Plaintiff. Babaeian takes inconsistent positions in his opposition to the motion. First, Babaeian claims that Plaintiff’s claims are completely without merit. However, Babaeian then claims that Bankers Life is paying only pennies of a potential million-dollar judgment.

The total settlement consideration is more than half, if not more, of Plaintiff’s potential recovery in this case. As such, it is reasonable considering that a settlor should pay less in settlement than if found liable at trial.

Since there is only one Plaintiff in this case, there is no allocation of settlement proceeds among multiple plaintiffs. Similarly, the defendants’ financial conditions have not been at issue, therefore, their financial conditions and/or their insurance policy limits do not apply.

Contrary to Babaeian’s assertions, the circumstances surrounding the settlement do not evidence collusion or fraud among the settling parties aimed at making Babaeian pay more than his fair share of any liability. (See Cotter Decl. 4).

Based on the foregoing, the settlement between Bankers Life and Plaintiff is found to be in good faith pursuant to CCP 877.6 barring any further claims by any other joint tortfeasor or co-obligor against Bankers Life for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. See CCP 877.6(c).



b'

Case Number: ****7690 Hearing Date: July 23, 2021 Dept: F47

Dept. F-47

Date: 7/23/21

Case #****7690

APPLICATION/MOTION TO BE ADMITTED PRO HAC VICE

Amended Motion/Application filed on 7/1/21.

MOVING PARTY: Defendant Bankers Life and Casualty Company

RESPONDING PARTY: all other parties

RELIEF REQUESTED: An order approving the application of Steven K. Huffer, Esq. to appear as counsel pro hac vice on behalf of Defendant Bankers Life and Casualty Company.

RULING: The application is granted.

'


Case Number: ****7690    Hearing Date: August 25, 2020    Dept: F47

Dept. F-47

Date: 8/25/20

Case #****7690

MOTION TO ENFORCE SETTLEMENT AGREEMENT

Motion filed on 7/15/20.

MOVING PARTY: Defendant/Cross-Complainant Bankers Life and Casualty Company

RESPONDING PARTY: Plaintiff/Cross-Defendant Hamidreza Ghasemi

NOTICE: ok

RELIEF REQUESTED: An order and judgment enforcing the terms of the parties’ Release and Settlement Agreement against Plaintiff/Cross-Defendant Hamidreza Ghasemi. Alternatively, if the Court declines to enforce the Settlement Agreement, Bankers Life requests that the Court order Plaintiff to return Bankers Life’s settlement funds, with interest.

RULING: Bankers Life and Casualty Company’s request for an order and judgment enforcing the terms of the parties’ Release and Settlement Agreement is denied. The alternative request for an order requiring Plaintiff to return Bankers Life’s settlement funds, with interest, is granted, in part, and denied, in part. Plaintiff is ordered to return Bankers Life’s settlement funds without interest within 14 days of this order.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. Failure to comply with these requirements in the future may result in matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

Bankers Life and Casualty Company’s and Plaintiff’s Requests for Judicial Notice are granted.

This action arises out of a dispute as to whether a disability insurance policy purchased by Plaintiff from Defendant Bankers Life and Casualty Company (Bankers Life) provided benefits for 5 years or up until Plaintiff reached the age of 65. Although Plaintiff executed a form changing the benefit period to 5 years from “to age 65” as requested in his application, Plaintiff contends that Defendant Mohsen Babaeian, a Bankers Life insurance agent, acted as his interpreter and misrepresented that the policy provided benefits to age 65.

In 2011, Plaintiff was declared disabled. Bankers Life paid benefits for 5 years. When Bankers Life stopped paying under the policy, Plaintiff filed this action for: (1) fraud, (2) negligent misrepresentation, (3) reformation, (4) negligence, (5) breach of contract, (6) breach of implied obligation of good faith and fair dealing, (7) declaratory relief and (8) violation of Business & Professions Code 17200.

Bankers Life contends that Plaintiff’s claim submissions contained material misrepresentations and concealments; therefore, Bankers Life filed a cross-complaint against Plaintiff. The operative First Amended Cross-Complaint contains causes of action for: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing; (3) intentional misrepresentation/concealment, (4) negligent misrepresentation, (5) declaratory judgment/no loss of earnings, (6) declaratory judgment/rescission and (7) restitution for unjust enrichment.

On 3/4/19, the parties, through counsel, purportedly reached a global settlement. Plaintiff and Bankers Life signed the settlement agreement and Bankers Life tendered a portion of the settlement funds to Plaintiff. Babaeian did not sign the settlement agreement. Therefore, his errors and omissions insurance carrier would not tender his share of the settlement funds to Plaintiff.

As a result, Plaintiff filed a motion to enforce the settlement agreement which this Court denied on 10/30/19. (See 10/30/19 Minute Order). On 3/11/20, Bankers Life asked Plaintiff to return its settlement check. (Cotter Decl. ¶¶3-4, Ex.A, B p.4). On 4/13/20, Plaintiff advised that the check had been deposited in his counsel’s Client Trust Account. (Cotter Decl., Ex.C, p.4). In response, Bankers Life told Plaintiff he would either have to settle with Bankers Life or return the money. Id. On 4/17/20, Plaintiff indicated he would return the money, but has failed to do so. (Id. at Ex.C, pp.2-3, Ex.B-D). Thereafter, Bankers Life filed the instant motion seeking an order and judgment enforcing the terms of the parties’ Release and Settlement Agreement against Plaintiff/Cross-Defendant Hamidreza Ghasemi. Alternatively, Bankers Life requests that the Court order Plaintiff to return Bankers Life’s settlement funds, with interest.

CCP 664.6 provides:

If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

Bankers Life and Plaintiff both concede that the subject settlement agreement was intended to be a “global settlement” involving Plaintiff, Bankers Life and Babaeian. (See Bankers Life Memo of Points and Authorities, p.2:10-11; Opp. p.3:3-5; Jafari Decl.¶¶4, 7, Ex.B ¶4). CCP 664.6 does not authorize this Court to create material terms of the settlement, as opposed to deciding terms upon which the parties themselves have previously agreed. Weddington Productions, Inc. (1998) 60 CA4th 793, 797; Osumi (2007) 151 CA4th 1355, 1360; Hernandez (2004) 126 CA4th 1161, 1176. As noted above, this Court denied Plaintiff’s prior motion which sought to have the same global settlement agreement enforced against Mohsen Babaeian. (See 10/30/19 Minute Order). The Court determined that Plaintiff could not enforce and/or have judgment entered against Babaeian under CCP 664.6 based upon the Release and Settlement Agreement which was not signed by Babaeian or a representative of his insurer. Id. In essence, this Court has already determined that the global settlement intended under the Release and Settlement Agreement, which is also the agreement at issue in this motion, was not reached. This Court cannot transform the intended global settlement into an enforceable settlement agreement between only Plaintiff and Bankers Life. Under the circumstances, Plaintiff acknowledges

Additionally, a party may not accept money for a settlement and continue the lawsuit. See Myerchin (2008) 162 CA4th 1562, 1529, disapproved on other grounds in Village Northridge Homeowners Ass’n (2010) 50 C4th 913, 929, n.6. Therefore, Plaintiff must return the settlement funds paid by Bankers Life.

Bankers Life has not presented any argument or authority for its request that the settlement funds be returned with interest. Additionally, Bankers Life’s requests to Plaintiff for the return of the settlement funds prior to filing this motion did not request the payment of interest. Therefore, Bankers Life’s request for interest in an unspecified amount on the funds is denied.



Case Number: ****7690    Hearing Date: August 19, 2020    Dept: F47

Dept. F-47

Date: 8/19/20

Case #****7690

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

Motion filed on 5/28/20. Joinder filed on 7/7/20.

MOVING PARTY: Defendant/Cross-Complainant Bankers Life and Casualty Company

JOINING PARTY: Defendant Mohsen Babaeian

RESPONDING PARTY: Plaintiff/Cross-Defendant Hamidreza Ghasemi

NOTICE: ok

RELIEF REQUESTED: An order granting summary judgment as to the Complaint and summary adjudication as to the First Amended Cross-Complaint, in favor of Bankers Life and Casualty Company and against Hamidreza Ghasemi.

RULING: The motion is denied in its entirety.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When efiling documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. Failure to comply with these requirements in the future may result in matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

This action arises out of a dispute as to whether a disability insurance policy purchased by Hamidreza Ghasemi (Ghasemi) from Bankers Life and Casualty Company (Bankers) provided benefits for 5 years or up until Ghasemi reached the age of 65. Although Ghasemi executed a form changing the benefit period to 5 years from “to age 65” as requested in his application, Ghasemi contends that Defendant Mohsen Babaeian, a Bankers insurance agent, acted as his interpreter and misrepresented that the policy provided benefits to age 65.

In 2011, Ghasemi was declared disabled. Bankers paid benefits for 5 years. When Bankers stopped paying under the policy, Ghasemi filed this action for: (1) fraud, (2) negligent misrepresentation, (3) reformation, (4) negligence, (5) breach of contract, (6) breach of implied obligation of good faith and fair dealing, (7) declaratory relief and (8) violation of Business & Professions Code 17200.

Bankers contends that Ghasemi’s claim submissions contained material misrepresentations and concealments; therefore, Bankers filed a cross-complaint against Ghasemi. The operative First Amended Cross-Complaint contains causes of action for: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing; (3) intentional misrepresentation/concealment, (4) negligent misrepresentation, (5) declaratory judgment/no loss of earnings, (6) declaratory judgment/rescission and (7) restitution for unjust enrichment.

The instant motion is procedurally defective. By way of the instant motion, Bankers improperly seeks reconsideration of this Court’s 2/22/18 denial of Banker’s motion for summary judgment, or in the alternative, summary adjudication of Plaintiff’s complaint. (See 2/22/18 Minute Order pp.4-6). Bankers has not complied with the requirements of CCP 1008. Bankers has not “shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” CCP 1008(b). Therefore, Bankers’ request for summary judgment of Plaintiff’s complaint must be denied. See CCP 1008(b), (e).

The request for summary adjudication as to Bankers’ First Amended Cross-Complaint is also defective. “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” CCP 473(c)(f)(1). “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” CRC 3.1350(b); See also CRC 3.1350(h).

Here, the issues set forth in the Notice of Motion are: “Issue 1: Ghasemi’s claim submissions contained material misrepresentations and concealments; therefore, the Policy must be rescinded” and “Issue 2: If the Policy is rescinded, all of Ghasemi’s claims fail because no policy

ever existed and Ghasemi has no damages. See Ghasemi’s Complaint, First Cause of Action

(Fraud), Second Cause of Action (Negligent Misrepresentation), Third Cause of Action (Reformation), Fourth Cause of Action (Negligence), Fifth Cause of Action (Breach of Contract), Sixth Cause of Action (Breach of the Implied Obligation of Good Faith and Fair Dealing), Seventh Cause of Action (Declaratory Relief), Eighth Cause of Action (Violation of Business and Professions Code ; 17200).” (See Notice of Motion p.2:19-p.3:1). The notice goes on to state “[a]dditionally, a finding in favor of rescission will summarily adjudicate Bankers Life’s First Amended Cross-Complaint, Sixth Cause of Action (Declaratory Judgment—Rescission). Bankers Life’s additional claims against Ghasemi should remain for trial.” (Notice of Motion p.3:2-4).

Based on the foregoing, it appears that the “issues” set forth in the Notice of Motion relate to the improper request for summary judgment on Plaintiff’s complaint. The mention of summary adjudication of the 6th cause of action for declaratory judgment - rescission in the First Amended Cross-Complaint is not set forth as a separate issue. In addition to the foregoing, no issues to be adjudicated are set forth in the separate statement as is required. See CRC 3.1350(b), (h).

Since the motion fails, Defendant Mohsen Babaeian’s joinder in the motion also fails. However, even the motion was not procedurally defective, the joinder is defective. Babaeian did not provide the requisite notice for a request for summary judgment/summary adjudication. The joinder was served only 42 days before the hearing date; therefore, it is untimely. See CCP 437c(a); Frazee (2002) 95 CA4th 627, 636-637; Barak (2006) 135 CA4th 654, 660-661. Additionally, Babaeian did not file his own separate statement as is required when joining in another party’s motion for summary judgment. Frazee, supra at 636. Further, Babaeian’s attempt to submit argument and evidence in support of his position in his “reply” is improper. Finally, like Bankers’ request for summary judgment on Ghasemi’s complaint, Babaeian’s joinder is also an improper request for reconsideration of this Court’s 2/22/18 denial of his motion for summary judgment, or in the alternative summary adjudication. (See 2/22/18 Minute Order, pp.1-4).

Based on the foregoing, there is no need to rule on the evidentiary objections made in relation to the motion.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where BANKERS LIFE AND CASUALTY COMPANY is a litigant

Latest cases where LEWIS BRISBOIS BISGAARD & SMITH LLP is a litigant