On November 29, 2016 a
Complaint,Petition
was filed
involving a dispute between
Gianfermo, Carole,
Joseph, Dominique Chesere,
Joseph, Eddy, Jr,
Meschi, Donna Marie,
Meschi, Vincent Andrew,
Roes 1-10,
and
California Automobile Insurance Company,
Does 1 Through 10,
Does 1 Through 20,
Does 3 Through 10,
Mercury Casualty Company,
Mercury Insurance Services, Llc,
for Complex Civil Unlimited Class Action
in the District Court of San Mateo County.
Preview
J. Edward Kerley (175695)
F K L
SAN MATEO COUNTY
E 11
Dylan L. Schaffer (153612)
l0 Kerley Schaffer LLP NOV 22 2017
1939 Harrison Street, #500
03 Oakland, California 94612 Clark oft upertorCou
Telephone: (510) 379—5 801
By '
4} Facsimile: (510) 228—0350 .
DEPUTY
Attorneys for Plaintiffs
0‘01
Donna Meschi, Junior Joseph, 16— (IN—02601
OAH
Vincent Meschi, and Dominique Joseph Order After Hearing
\1
iiimum11“q1\q
SUPERIOR COURT OF THE STATE OF CALIFORNIA
SAN MATEO COUNTY — UNLIMITED CIVIL JURISDICTION
1o
11
DONNA MARIE MESCHI, an Case No. 16CIV02607
12 individual, JUNIOR EDDY JOSEPH, an
individual, VINCENT ANDREW ORDER ON PLAINTIFFS’ FIRST
MESCHI, an individual, and CAROLE AMENDED PETITION TO STAY
13
GIANFERMO guardian ad litem for APPRAISAL PURSUANT TO CCP
14 DOMINIQUE CHESERE JOSEPH, an §1281.2
individual, on behalf of themselves and a
class of similarly situated persons, Date: November 3, 2017
15
Time: 10:00 AM
16 Plaintiffs, Dept: 23
v. Assigned to Hon. V. Raymond Swope,
17
Dept. 23 for all purposes
18 MERCURY CASUALTY COMPANY,
a corporation, and Does 1 through 10, Date filed: November 29, 2016
Trial date: TBD
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Defendants.
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Order Re Plaintiff’s First Amended Petition to Stay Appraisal
Plaintiffs’ First Amended Petition to Stay Appraisal Pursuant to C.C.P. §1281.2
was heard on November 3, 2017, in Department 23. Ian Fraser-Thomson appeared on
behalf of Mercury Casualty Company and J. Edward Kerley appeared on behalf of
omega
Plaintiffs.
The Court having heard oral argument and upon having reviewed the filings in this
matter rules as follows: IT IS ORDERED that defendant Plaintiffs’ First Amended
\1
Petition is denied without prejudice and the tentative ruling attached as Exhibit A is
adopted as the order of the Court.
10
Date: NOV 2.; 201?
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Honorable V. Raymoild Swope
Judge of the Superior Court
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Approved 1 fr'
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18—
I‘En’ Fraser-Thoms on
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24‘
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-1_
Order Re Plaintiff’s First Amended Petition to Stay Appraisal
EXHIBIT A
The Court DENIES, WITHOUT PREJUDICE, plaintiffs Donna Marie Meschl,
Junior Eddy Joseph, Vincent Andrew Meschi, and Dominque Chesere Sharleen
Joseph‘s (collectively “Plaintiffs") First Amended Petition to Stay Appraisal.
\DmVOO'I-bm
Although unopposed, in its discretion, the Court finds that a stay is not warranted
at this juncture. "(T)he decision whether to stay the appraisal is committed to the
trial court’s sound discretion." (Alexander v. Farmers ins. 00., inc. (2013) 219
10 Cal. App.4‘h at 1190. See Croskey, Cal. Prac. Guide: Ins. Litigation-(Rutter, Aug.
”a
11 2017 Update 1115:3595).
12
13 The sole basis for Plaintiffs‘ petition is a pre-litigation letter dated July 29, 2016
14 from defendant Mercury Casualty Company's (Defendant") following up Its June
15 1, 2016 request for appraisal. (Kerley Dec., filed Oct. 10, 2017.116 Ex. A, p. 1.)
16 Plaintiffs’ claim is based on a fire loss. (Id. at 11 2. See also Complaint, filed Nov.
17 29, 2016,1160). Standard form language applies to fire policies in California. (ins.
18 Code § 2070.) The standard form language is codified in Insurance Code section
19 2071, subdivision (a). Within 20 days of receiving Defendant's request, Plaintiffs
20 were required to select their appraiser to proceed with the enumerated appraisal
21 procedure. (Ins. Code § 2071, subd. (3). See Complaint, supra, Ex; A p. 16, § 6)
22 According to'that letter, Plaintiffs had failed to do so, and Defendant then
23 requested a response by August 10, 2016. (Id. at p. 2) Plaintiffs do .not address
24 whether they responded by the request date, but do state that repairs were
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Order Re Plaintiff‘s First Amended Petition to Stay Appraisal
r 4.
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f”
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completed on or about December 1, 2017 [sic]." (Kerley Dec. supra, at 1| 7.) the
instant action was then filed on November 29, 2016.
In Kirkwood v California State Automobile Association Inter-Insurance bureau,
the defendant demanded dismissal of the lawsuit and moved to compel the
appraisal.
\DmVONU‘l-bw
(Kirkwood v. California State Auto. Assn. Inter-Insurance Bureau
(2011) 193 Cal.App.4th 49, 56-57 (affirming the order denying. without prejudice,
CSAA‘s motion to compel appraisal). See Mem. Pts and Auth.. filed Oct. 10,
2017, p. 3:16 6:3.) Kirkwood is distinguishable. In the instant action, other than
10 sending a follow-up letter on July 29, 2016 to its June 1, 2016 request, Defendant
has made no effort to enforce its right to appraisal pursuant to insurance code
12 section 2071 , subdivision (a).
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Order Re Plaintiffs First Amended Petition to Stay Appraisal
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J. Edward Kerley (175695) F K L SAN MATEO COUNTY E 11 Dylan L. Schaffer (153612) l0 Kerley Schaffer LLP NOV 22 2017 1939 Harrison Street, #500 03 Oakland, California 94612 Clark oft upertorCou Telephone: (510) 379—5 801 By ' 4} Facsimile: (510) 228—0350 . DEPUTY Attorneys for Plaintiffs 0‘01 Donna Meschi, Junior Joseph, 16— (IN—02601 OAH Vincent Meschi, and Dominique Joseph Order After Hearing \1 iiimum11“q1\q SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN MATEO COUNTY — UNLIMITED CIVIL JURISDICTION 1o 11 DONNA MARIE MESCHI, an Case No. 16CIV02607 12 individual, JUNIOR EDDY JOSEPH, an individual, VINCENT ANDREW ORDER ON PLAINTIFFS’ FIRST MESCHI, an individual, and CAROLE AMENDED PETITION TO STAY 13 GIANFERMO guardian ad litem for APPRAISAL PURSUANT TO CCP 14 DOMINIQUE CHESERE JOSEPH, an §1281.2 individual, on behalf of themselves and a class of similarly situated persons, Date: November 3, 2017 15 Time: 10:00 AM 16 Plaintiffs, Dept: 23 v. Assigned to Hon. V. Raymond Swope, 17 Dept. 23 for all purposes 18 MERCURY CASUALTY COMPANY, a corporation, and Does 1 through 10, Date filed: November 29, 2016 Trial date: TBD 19 Defendants. 20 21 22 23 24 25 Order Re Plaintiff’s First Amended Petition to Stay Appraisal Plaintiffs’ First Amended Petition to Stay Appraisal Pursuant to C.C.P. §1281.2 was heard on November 3, 2017, in Department 23. Ian Fraser-Thomson appeared on behalf of Mercury Casualty Company and J. Edward Kerley appeared on behalf of omega Plaintiffs. The Court having heard oral argument and upon having reviewed the filings in this matter rules as follows: IT IS ORDERED that defendant Plaintiffs’ First Amended \1 Petition is denied without prejudice and the tentative ruling attached as Exhibit A is adopted as the order of the Court. 10 Date: NOV 2.; 201? 11 12 13 Honorable V. Raymoild Swope Judge of the Superior Court 14 15 16 Approved 1 fr' 17 18— I‘En’ Fraser-Thoms on 19 20 21‘ 22 23 24‘ 25 -1_ Order Re Plaintiff’s First Amended Petition to Stay Appraisal EXHIBIT A The Court DENIES, WITHOUT PREJUDICE, plaintiffs Donna Marie Meschl, Junior Eddy Joseph, Vincent Andrew Meschi, and Dominque Chesere Sharleen Joseph‘s (collectively “Plaintiffs") First Amended Petition to Stay Appraisal. \DmVOO'I-bm Although unopposed, in its discretion, the Court finds that a stay is not warranted at this juncture. "(T)he decision whether to stay the appraisal is committed to the trial court’s sound discretion." (Alexander v. Farmers ins. 00., inc. (2013) 219 10 Cal. App.4‘h at 1190. See Croskey, Cal. Prac. Guide: Ins. Litigation-(Rutter, Aug. ”a 11 2017 Update 1115:3595). 12 13 The sole basis for Plaintiffs‘ petition is a pre-litigation letter dated July 29, 2016 14 from defendant Mercury Casualty Company's (Defendant") following up Its June 15 1, 2016 request for appraisal. (Kerley Dec., filed Oct. 10, 2017.116 Ex. A, p. 1.) 16 Plaintiffs’ claim is based on a fire loss. (Id. at 11 2. See also Complaint, filed Nov. 17 29, 2016,1160). Standard form language applies to fire policies in California. (ins. 18 Code § 2070.) The standard form language is codified in Insurance Code section 19 2071, subdivision (a). Within 20 days of receiving Defendant's request, Plaintiffs 20 were required to select their appraiser to proceed with the enumerated appraisal 21 procedure. (Ins. Code § 2071, subd. (3). See Complaint, supra, Ex; A p. 16, § 6) 22 According to'that letter, Plaintiffs had failed to do so, and Defendant then 23 requested a response by August 10, 2016. (Id. at p. 2) Plaintiffs do .not address 24 whether they responded by the request date, but do state that repairs were 25 __2_- Order Re Plaintiff‘s First Amended Petition to Stay Appraisal r 4. \‘ f” X completed on or about December 1, 2017 [sic]." (Kerley Dec. supra, at 1| 7.) the instant action was then filed on November 29, 2016. In Kirkwood v California State Automobile Association Inter-Insurance bureau, the defendant demanded dismissal of the lawsuit and moved to compel the appraisal. \DmVONU‘l-bw (Kirkwood v. California State Auto. Assn. Inter-Insurance Bureau (2011) 193 Cal.App.4th 49, 56-57 (affirming the order denying. without prejudice, CSAA‘s motion to compel appraisal). See Mem. Pts and Auth.. filed Oct. 10, 2017, p. 3:16 6:3.) Kirkwood is distinguishable. In the instant action, other than 10 sending a follow-up letter on July 29, 2016 to its June 1, 2016 request, Defendant has made no effort to enforce its right to appraisal pursuant to insurance code 12 section 2071 , subdivision (a). 13 14 15 16 17 18 19 20 21 22 23 24 25 -_3-- Order Re Plaintiffs First Amended Petition to Stay Appraisal