[00:00:06] Speaker 03:
Please the court Jeff Lewis for a pellet.

[00:00:09] Speaker 03:
I'd like to reserve three minutes for a rebuttal.

[00:00:13] Speaker 01:
Okay watch your clock please.

[00:00:14] Speaker 03:
Thank you.

[00:00:17] Speaker 03:
In opposing summary judgment Lennox offered three buckets of evidence that warrant denial of that summary judgment motion.

[00:00:25] Speaker 03:
The first bucket was they offered evidence that they did not get the denial letter regarding the 2018 loss and in addition to denying receipt of that letter

[00:00:35] Speaker 03:
They offered evidence that called into question whether or not the letter was properly sent.

[00:00:40] Speaker 03:
We have an online confirmation saying that the letter was sent to a building's either mail room or reception or front desk.

[00:00:49] Speaker 03:
No signature and the tag wasn't filled out.

[00:00:51] Speaker 03:
We have evidence of concurrently emailed and written letters that were sent to the wrong... You're talking about the 2018 law?

[00:00:57] Speaker 03:
Yes, talking about 2018.

[00:00:59] Speaker 03:
Thank you.

[00:01:01] Speaker 03:
And so at the summary judgment stage,

[00:01:04] Speaker 03:
We feel that enough evidence was generated that a jury should have determined whether or not this 2018 lost denial letter was actually received.

[00:01:14] Speaker 03:
The second bucket of evidence that warranted denial of summary judgment relates to Mr. Nasani's cooperation and submission to examinations under oath.

[00:01:25] Speaker 03:
Keep in mind this is during COVID.

[00:01:27] Speaker 03:
It was undisputed below that it was actually the insurance company who agreed to postpone the examinations under successive occasions due to health reasons and the stay at home shutdown orders.

[00:01:40] Speaker 04:
With respect to the 2019 loss though, there were requests for documents that were not produced.

[00:01:46] Speaker 04:
Absolutely.

[00:01:47] Speaker 04:
Which is different than not wanting to be in person for a deposition.

[00:01:52] Speaker 03:
Those were not produced.

[00:01:55] Speaker 03:
We have a classic dispute on that.

[00:01:57] Speaker 03:
There was the evidence by the insurance company that said, you didn't produce what we asked you to produce.

[00:02:02] Speaker 03:
And then you have Mr. Nasani's declaration, Ms.

[00:02:04] Speaker 03:
Vargas' declaration, and the declaration of their coverage expert, Mr. Zalma, who all said, not only did we produce everything that we have, but it was sufficient for the insurance company, Amco, to develop its own in-house

[00:02:20] Speaker 03:
Calculation of what should be paid It crunched the numbers and it got a recommendation of what should be paid on this claim And so there's a conflict in evidence there And I think the trial court improperly weighed and found the insurance company Insurance companies evidence was more credible and then the third bucket of evidence that we offered below was

[00:02:42] Speaker 03:
whether or not the car wash was actually open in the final quarter of 2018.

[00:02:45] Speaker 03:
We have declarations by at least two witnesses, Mr. Nasani and his assistant, Ms.

[00:02:51] Speaker 03:
Vargas, that although the mechanical operations were shut down for repairs, the car wash was open for hand washes for three months.

[00:03:00] Speaker 03:
And there was conflicting evidence on this point.

[00:03:03] Speaker 03:
The insurance company said, well, hey, we see that your electricity and your water bills were less during that period.

[00:03:09] Speaker 03:
But this is a conflict of evidence that should have been resolved by the jury.

[00:03:14] Speaker 03:
And unless the court has any other questions, for those reasons, we think the briefing was adequate and those three buckets of evidence demonstrate tribal issues of fact.

[00:03:24] Speaker 01:
Well, you have an address with respect to the 2018 loss.

[00:03:28] Speaker 01:
the presumption that applies when mail is put in the stream of the post office and, you know, it's presumed to be received in the ordinary course.

[00:03:44] Speaker 01:
And how did you rebut that?

[00:03:48] Speaker 03:
So, Your Honor, there's two pieces to that.

[00:03:49] Speaker 03:
There's does the presumption arise and did we rebut it?

[00:03:53] Speaker 03:
And in terms of the presumption arising,

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I'll admit there was evidence offered by the insurance company that somebody sent it by certified mail and they think it was to the correct address.

[00:04:05] Speaker 03:
And that's pretty good evidence.

[00:04:07] Speaker 03:
But what you didn't have was a completed evidence, or excuse me, a tag or receipt showing that it was properly filled out.

[00:04:14] Speaker 03:
And you had concurrent evidence offered on the rebuttal part in terms of rebutting the presumption.

[00:04:20] Speaker 03:
You had concurrent evidence that these folks, the insurance company, used wrong email addresses and wrong mailing

[00:04:25] Speaker 04:
Well, why does the email even have to do with it?

[00:04:28] Speaker 04:
If a letter is sent and there's a presumption, a common law and California rule that proof of proper mailing gives rise to a rebuttable presumption of mailing, there doesn't have to be a second form.

[00:04:48] Speaker 04:
So if an email is sent or not sent or sent to the wrong address, why is that even relevant?

[00:04:54] Speaker 03:
You're correct.

[00:04:55] Speaker 03:
There's no requirement for email.

[00:04:57] Speaker 03:
Okay, so that that piece of evidence is sort of irrelevant if the letter arrived It doesn't matter if there was an email Well, let me suggest this your honor if we have evidence an insurance company is using a wrong email address and a wrong mailing address in correspondence There's an inference at the MSJ stage that the insurance companies not doing its best to deliver well who rebutted the delivery of the 2018 notice

[00:05:21] Speaker 02:
So who rebutted the delivery of the 2018 notice?

[00:05:25] Speaker 03:
The only evidence offered was Mr. Nasani's declaration, his executive assistant's declaration, and his outside counsel's declaration saying, we didn't get it.

[00:05:36] Speaker 04:
No, he didn't actually say he didn't get it.

[00:05:39] Speaker 04:
He said that he was unaware of the decision, which is sort of a weasel words in a sense, that it doesn't really say that it didn't arrive.

[00:05:54] Speaker 04:
It could have easily arrived and he didn't read it.

[00:05:57] Speaker 04:
That would also make him unaware.

[00:05:59] Speaker 04:
So what evidence is there of

[00:06:01] Speaker 04:
the mail handling routing or something that shows that it didn't arrive.

[00:06:07] Speaker 03:
Your honor, they should have.

[00:06:08] Speaker 03:
It would have been better to have had a more fulsome declaration talking about the sorting process.

[00:06:12] Speaker 04:
Well, they didn't.

[00:06:13] Speaker 03:
And they didn't.

[00:06:14] Speaker 04:
So why is that rebutted?

[00:06:16] Speaker 03:
Because the three declarations taken together by Mr. Vargas, Mr. Nasani, and this outside counsel that they were unaware of this document coupled with

[00:06:27] Speaker 02:
But why would they be competent?

[00:06:28] Speaker 02:
Why would the two people at the car wash be competent at all, given that that wasn't the notice sent to the law firm?

[00:06:35] Speaker 03:
Correct.

[00:06:36] Speaker 03:
But if they were unaware that the letter had shown up, there's an inference at the MSJ stage that if the lawyer had received this letter, he would have given it to his clients.

[00:06:48] Speaker 03:
and they would have taken action.

[00:06:49] Speaker 04:
Well, if he was doing his job, but isn't it equally possible?

[00:06:54] Speaker 04:
I mean, it really struck me that the way of saying, gee, I wasn't aware of it is quite different than saying,

[00:07:06] Speaker 04:
We have regular mail delivery with so-and-so, and they've never seen such a letter.

[00:07:12] Speaker 04:
It did not arrive.

[00:07:14] Speaker 03:
Your Honor, it's an ugly, terrible fact for me.

[00:07:16] Speaker 03:
And I would not, after trial, argue an insufficiency of the evidence.

[00:07:21] Speaker 03:
But I think at the MSJ stage, where conflicting evidence in terms of reasonable inferences, we're entitled to the reading of that lawyer declaration in the best, most favorable light to the non-moving party.

[00:07:36] Speaker 03:
And with that, I have two and a half minutes.

[00:07:37] Speaker 03:
I'd like to reserve for a bottle, please.

[00:07:39] Speaker 03:
All right.

[00:07:39] Speaker 03:
Thank you.

[00:07:40] Speaker 03:
Thank you.

[00:07:50] Speaker 00:
Good morning, Your Honors.

[00:07:51] Speaker 00:
Matt Kleiner on behalf of AMCO Insurance Company.

[00:07:54] Speaker 00:
I have to apologize.

[00:07:55] Speaker 00:
Those first two appeals were very interesting, very complicated facts.

[00:07:58] Speaker 00:
And I hope that this is more of a simple set of facts to process.

[00:08:06] Speaker 00:
first claim from 2018.

[00:08:09] Speaker 00:
The district properly denied that for failure to comply with the one-year limitations period to bring a lawsuit.

[00:08:15] Speaker 00:
They've been arguing against the mail box rule and if you look at the evidence that was submitted in conjunction with the motion for summary judgment, AMCO more than satisfied its burden to show that the mail had been delivered.

[00:08:30] Speaker 00:
You have a declaration from Ms.

[00:08:32] Speaker 00:
Sanders who testified that she filled out a green certified mail slip, sent it to the address, confirmed with a phone call to the United States Post Office and also printed out the tracking.

[00:08:44] Speaker 00:
The fact that the tracking printout only had the zip code and the city on it is something that isn't sufficient to rebut the presumption here that's been invoked.

[00:08:55] Speaker 01:
Is there any evidence that AMCO had the incorrect mailing address?

[00:09:00] Speaker 00:
I bet the first time I've heard that was in this argument today.

[00:09:03] Speaker 00:
They had the correct incorrect email address, but it was correctly addressed to mr. Rooney who was counsel for the plaintiff And that's where the address was sent and it was correctly addressed to mr. Rooney as your honor pointed out mr. Rooney merely testified in his declaration that he was unaware of what was in the

[00:09:22] Speaker 00:
coverage position letter.

[00:09:25] Speaker 00:
As also this court pointed out, the other two declarations... He didn't quite say that either.

[00:09:28] Speaker 04:
He said he was unaware of the claims denial.

[00:09:32] Speaker 00:
Correct.

[00:09:33] Speaker 00:
But he did not say that he received it or did not receive the letter.

[00:09:37] Speaker 00:
And in order to rebut effectively the presumption that's established by the mailbox rule to show non-receipt, you have to give a detailed description of how your mail is received, how it's sorted, how it's distributed.

[00:09:49] Speaker 00:
There is no one who testified how Mr. Rooney's mail was sorted, received, and distributed.

[00:09:54] Speaker 00:
And there's no one who testified how from Mr. Rooney's office that a diligent search had been performed for that letter and had not been found.

[00:10:02] Speaker 02:
Mr. Kleiner, I'm curious about how our federal rule 56 interacts with the mailbox rule.

[00:10:11] Speaker 02:
So we do have California law sets forth a clear presumption and we've been talking about whether that presumption is rebutted but we've got an overlay of if we're going to deny a trial under federal law, there has to be a genuine issue of material fact and we have to draw the inferences in favor of the non-moving party.

[00:10:31] Speaker 02:
So what are we to do with that?

[00:10:34] Speaker 02:
Is somehow applying these presumptions where they have an obligation to do more than they've already done and everything's a little unclear?

[00:10:43] Speaker 02:
Why doesn't Rule 56 override whatever presumptions exist under California state law with respect to this mailbox rule?

[00:10:50] Speaker 00:
Well, the mailbox rule establishes a presumption of delivery, and it has specific elements as to if you prove those elements, then you've created this presumption.

[00:10:57] Speaker 02:
Well, but if you prove, but you're in federal court, and so the way we prove things is going to trial.

[00:11:02] Speaker 02:
If there's a genuine issue of material fact, you don't get summary judgment on even if it's proof of what are state law presumptions.

[00:11:15] Speaker 00:
Craig, if you look here, there is no genuine issue of material factors as to any of the points.

[00:11:22] Speaker 00:
As the evidence that was submitted, they don't have any evidence that Ms.

[00:11:27] Speaker 00:
Sanders didn't go ahead and fill out the information on the certified mailing slip and mail the delivery.

[00:11:34] Speaker 00:
There isn't anything to rebut the evidence as it relates to the confirmations that were received of delivery.

[00:11:40] Speaker 00:
There is no evidence to... The confirmations are all but illegible.

[00:11:45] Speaker 02:
How are we supposed to know in terms of at least the copy we have in the record?

[00:11:49] Speaker 00:
Well, you have the declaration of Ms.

[00:11:52] Speaker 00:
Sanders who declares in her declaration what she did and how she filled it out and how she received the confirmations, Your Honor.

[00:11:58] Speaker 00:
So that authenticates those confirmations.

[00:12:02] Speaker 00:
The actual confirmation from the U.S.

[00:12:03] Speaker 00:
Post Office, again, it does show that it was delivered to the front desk at an address to the correct zip code and city that were on the letter.

[00:12:11] Speaker 04:
If I could ask a different question having to do with the 2019 loss, would you discuss the evidence concerning cooperation or lack of cooperation concerning that loss?

[00:12:28] Speaker 00:
Yes, Your Honor.

[00:12:28] Speaker 00:
So as to 2019, the district court correctly granted a summary judgment finding that Linux had failed to cooperate and did not submit any documents to support the claim, including a list of the items that were stolen, original invoices of the stolen items, estimates for repairs, photos, or even the police report number.

[00:12:47] Speaker 00:
Without these documents, AMCO could not perform evaluation as to what the amount of the loss was.

[00:12:53] Speaker 00:
There were multiple requests requesting this information, and it was never provided.

[00:12:57] Speaker 00:
In the briefs, Lennox conflates information that was provided in the 2018 loss with the 2019 loss.

[00:13:04] Speaker 04:
They argue that Mr. They did cooperate in the 2018 loss, as I recall.

[00:13:09] Speaker 00:
There was more information submitted with the 2019 loss.

[00:13:11] Speaker 00:
Mr. Nasani set for an examination under oath as related to the 2018 loss.

[00:13:16] Speaker 00:
But that related to the 2018 loss.

[00:13:18] Speaker 00:
This is a different loss a year later for different property.

[00:13:21] Speaker 00:
It can't be the same property because that property from the 2018 loss is presumably gone.

[00:13:26] Speaker 00:
The May 2019 date of loss that was referenced in the opening brief, if you look at the date on that as to the date of loss, not the date of the document, is from the 2018 loss.

[00:13:38] Speaker 00:
So there was no documentation that was submitted in order

[00:13:42] Speaker 00:
AMCO to evaluate the value of the property that was stolen to process that claim.

[00:13:48] Speaker 00:
And therefore, AMCO sustains substantial prejudice as it relates to the 2019 loss.

[00:13:57] Speaker 00:
So therefore, the district court appropriately granted summary judgment on that point.

[00:14:04] Speaker 00:
Unless there are any other questions.

[00:14:05] Speaker 00:
Did I answer your question, Your Honor, about the genuine issue?

[00:14:08] Speaker 02:
Yes.

[00:14:08] Speaker 02:
You said the magic words.

[00:14:09] Speaker 00:
OK.

[00:14:10] Speaker 00:
Thank you, Your Honor.

[00:14:10] Speaker 00:
Anything further?

[00:14:11] Speaker 01:
Okay, thank you council And so I'm just this case baffles me because your client Has insurance they had two burglaries and they seem just not to follow through with the requirements of the of the insurance contract and You know here we are it just seems very baffling that they

[00:14:40] Speaker 01:
would not have, I mean, they had hired an attorney that, you know, that nothing was done promptly.

[00:14:51] Speaker 01:
And the 2019 loss, there was no cooperation even though there were at least five requests for specific information.

[00:15:01] Speaker 03:
So let me respond to that if I could.

[00:15:04] Speaker 03:
And I do want to correct, if I left the court with the impression that there was a problem with the mailing address for the 2018 loss, that was a misstatement by me.

[00:15:14] Speaker 03:
There were problems with the insurance company using bad mailing addresses for other communications to my client, but not regarding the 2018 denial.

[00:15:23] Speaker 03:
And specifically, page ER 122 of the excerpts deals with that.

[00:15:27] Speaker 03:
In terms of why are we here and why did he have insurance counsel but nothing was followed up on I'll offer two things.

[00:15:33] Speaker 03:
One, some of this was during COVID communications.

[00:15:38] Speaker 03:
When you mail things to offices where people aren't at, that's hard.

[00:15:42] Speaker 03:
We also have the Vargas declaration that said a bad address was used for her in connection with a document request that the insurance company sent to her.

[00:15:49] Speaker 03:
And we also have this interesting issue where Mr. Nassani declared that he signed the examination under oath transcripts, gave it to his lawyer.

[00:15:58] Speaker 03:
And there's a gap in terms of what happened to those signatures after that.

[00:16:02] Speaker 03:
So I'm not sure if there was a lawyer issue here or a COVID issue or a mailing issue.

[00:16:07] Speaker 03:
But I will say Mr. Nassani's declaration does suggest that he did everything he could to have him and his assistant provide documents that were asked for.

[00:16:18] Speaker 03:
And unless there's any other questions, I'm prepared to submit on this record.

[00:16:23] Speaker 01:
All right.

[00:16:23] Speaker 01:
Thank you, Council.

[00:16:24] Speaker 01:
Lennox Car Wash versus Amco Insurance Company will be submitted.

[00:16:29] Speaker 01:
And we are going to take about a five-minute break before we take up the next and the last case today.

[00:16:39] Speaker 01:
And, Council, you can just get yourselves set up while we're taking a break.

[00:16:44] Speaker 01:
Thank you very much.

[00:16:54] Speaker 01:
This court stands in recess.