Free Declaration in Support - District Court of California - California

Case 3:07-cv-04723-MHP

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Filed 12/04/2007

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FRANK S. MOORE, SBN 158029 Law Offices of Frank S. Moore, APC SUZY C. MOORE, SBN 151502 Law Offices of Suzy C. Moore 1374 Pacific Avenue San Francisco, California 94109 Telephone: (415) 292-6091 Facsimile: (415) 292-6694 Attorneys for Defendant ROSA RIVERA KEEL

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) vs. ) ) ROSA RIVERA KEEL AND DOES 1 through ) 10, INCLUSIVE, ) ) ) Defendant. ) / OM FINANCIAL SERVICES COMPANY, No. C07-04723 MHP DECLARATION OF ROSA RIVERA KEEL IN SUPPORT OF DEFENDANT'S SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA'S ANTISLAPP STATUTE [Cal. Code of Civ.Proc., 425.16] Date: January 14, 2008 Time: 2:00 p.m. Place: Courtroom 15, 18th Floor Honorable Marilyn Hall Patel

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OM FINANCIAL SERVICES COMPANY v. ROSA RIVERA KEEL, et al. Case No. C07-04723 MHP

DECLARATION OF ROSA RIVERA KEEL IN SUPPORT OF DEFENDANT'S SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA'S ANTI-SLAPP STATUTE

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Case 3:07-cv-04723-MHP

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Filed 12/04/2007

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I, ROSA RIVERA KEEL, hereby declare: 1. I am the defendant named in this action. I have personal knowledge of the matters stated

herein. If called as a witness, I could testify truthfully to the matters stated herein. I make this declaration in support of my Special Motion to Strike Plaintiff's Complaint Pursuant to California's Anti-SLAPP Statute. 2. On or about August 27, 2005, my husband, Sean Kenneth Keel (now deceased), entered

into a contract with Patrice Ann Pfitzer and Family Direct Insurance Services, Inc., to secure a life insurance policy with a death benefit coverage of $620,000 for me to pay off the mortgage to our house in the event of his death. Patrice Ann Pfitzer and Family Direct Insurance Services, Inc., were insurance agents who sold life insurance policies issued by Fidelity and Guaranty Life Insurance Company, the predecessor entity of the plaintiff, Om Financial Services Company. 3. My husband was killed as a result of a car jacking incident on January 21, 2006. After

Fidelity and Guaranty Life Insurance Company refused to honor the policy, I filed a lawsuit last year against Patrice Ann Pfitzer and Family Direct Insurance Services, Inc., in San Francisco County Superior Court, Case No. CGC 06-457269, alleging negligence in the procurement of a life insurance policy. The basis for the claim of negligence was that my husband had accepted the agents' offer to arrange direct withdrawal payments of the premiums for the policy by paying $97.47, which would pay for the first month after the policy was issued and future payments would be drawn from his checking account. There was an error in the procedure in setting up the direct withdrawals from my husband's bank account that neither my husband nor Patrice Ann Pfitzer and Family Direct Insurance Services, Inc., caught. Patrice Ann Pfitzer delivered a letter to my husband along with the Policy L0531119 issued by Fidelity and Guaranty Life Insurance Company with a certificate of life insurance. Bound with Policy L0531119 was a copy of the check my husband had provided to for $97.78 with the word "VOID" written across it. The implication of including this check bound with the policy was that Patrice Ann Pfitzer and Family Direct Insurance Services, Inc., had set up the automatic withdrawal from my husband's account as they offered to do. A true and correct copy of the complaint I filed in San Francisco County Superior Court, Case No. CGC 06-457269, is attached as Exhibit "C" to the Declaration of my counsel, Frank S. Moore, in Support of Request for Judicial Notice filed concurrently herewith. ____________________________________________________________________________________
OM FINANCIAL SERVICES COMPANY v. ROSA RIVERA KEEL, et al. Case No. C07-04723 MHP

DECLARATION OF ROSA RIVERA KEEL IN SUPPORT OF DEFENDANT'S SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA'S ANTI-SLAPP STATUTE

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Case 3:07-cv-04723-MHP

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4.

Through discovery conducted in Case No. CGC 06-457269, I learned that my husband

had omitted from his insurance application the treatment he had received for substance abuse. While I did not believe that this fact diminished the negligence by Patrice Ann Pfitzer and Family Direct Insurance Services, Inc., in failing to set up the automatic withdrawal from my husband's bank account, I understood that this fact could effect the outcome of the case and increase the costs of litigation. Therefore, on February 27, 2007, I authorized my counsel to file a voluntary dismissal, without prejudice, of the entire action in Case No. CGC 06-457269. A true and correct copy of the voluntary request for dismissal filed in San Francisco County Superior Court, Case No. CGC 06-457269, is attached as Exhibit "D" to the Declaration of my counsel, Frank S. Moore, in Support of Request for Judicial Notice filed concurrently herewith. 5. After dismissing the lawsuit, I researched ways to hold Patrice Ann Pfitzer and Family

Direct Insurance Services, Inc., responsible for failing to set up the automatic withdrawal from my husband's bank account to pay for the policy premiums instead of pursuing costly litigation. Upon advice of counsel, I initiated a consumer complaint against Family Direct Insurance Services, Inc., with the Department of Insurance on May 20, 2007. A true and correct copy of the consumer complaint I initiated with the Department of Insurance on May 20, 2007, is attached as Exhibit "E" to the Declaration of my counsel, Frank S. Moore, in Support of Request for Judicial Notice filed concurrently herewith. I explained in the consumer complaint that I was seeking this remedy "because costs and fees to litigate would be costly for me." 6. The consumer complaint that I initiated with the Department of Insurance resulted in the

assignment of a Senior Insurance Compliance Officer to investigate plaintiff's practices which is pending and ongoing. On June 11, 2007, and again on September 27, 2007, I received written correspondence from Elizabeth Saentz, the Senior Insurance Compliance Officer with the Department of Insurance. This correspondence is collectively attached as Exhibit "F" to the Declaration of my counsel, Frank S. Moore, in Support of Request for Judicial Notice filed concurrently herewith. In the September 27, 2007 correspondence, Ms. Saenz informed me that Rusell Laws of Om Financial's legal department had decided to pursue the matter in court.

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OM FINANCIAL SERVICES COMPANY v. ROSA RIVERA KEEL, et al. Case No. C07-04723 MHP

DECLARATION OF ROSA RIVERA KEEL IN SUPPORT OF DEFENDANT'S SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA'S ANTI-SLAPP STATUTE

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The Kee Case 3:07-cv-04723-MHPI s Document 11

·k 415]671-OEû Filed 12/04/2007

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7.

Wang, rvhich in coursel, Henry fromplaintifFs I a 31, On October 2007, received letter

of he informedme that he filed this actionon behalfoflhisclient,the plaintiff,because theconsumer he in Specifically. states hrsletter: of complaintI filed with the Deparftnent Insurance. the Rosa Subsequentl,-, [deferndant RiveraKeel] contacted CalifomiqD,epartment .vou thg JuneI I, ?007, FOI inquired oi'nr*"'ra"*itt)CiiSr"earrting thismatter.Onoi about a atnongotherlhings,thatOM Life-provide nrrahve rnto this matierand'deilrandeE, totheDOI, OMI-ifgplovidedatholouehexplanation explanationol'yourclaimhistory much *i[ itd*a Ui ilJ a**iiio", !l .-. . Neverthiless,in an effort lg-eiueal least-as to OM iteivesits owninterests, Lifehasdecided defer as tovourrnterestl io"siderarici" this mattcr toair impntial tribuilat. To that end,OM Life hasfiIerl a declaratorT DistrictCourtfor theNorthemDistnctof Califomia relief action in ttreUhiteaStates Keel 'CaseNo, C07Rivera v. Companlt ftos:a Ltfe Insurance EniiiteaOtr fininrioi 4723(NfrIP)("the Action'). as Letteris allached Exhibit "8" to the A true and correctcopy of Mr. Wang's Octuber26,2{J07 Noticefiledconcurrently forJudicial ofRequest FrankS,Moore,in Support I)eclaration ofmy counsel, herervith. L To payment. the initial premrum paid thm I haveneveralleged my husband the$378.30

NoCourt,Case CGC06-457269' Superiot I in contrary.I alleged thecomplaint frledin SanFrancisco 18: al it that it wasI who hadpaidthe plaintiffthe check. In thecomplainl, is alleged paragraph ·E êG S-- --k 1 J<¿ ê¤

loore,in Support o·w 13-Exhibit=`C"to he Declaration of my collnsel,Frank S.W Keel Complaint·E ·÷ oF RequesI·u Judidal Notice rlled cOncurrel11ly herewith 9. Inancial ·oe ation of·¡ lawsuit bv the plalniffwill cause me substantal·u hardship Thc iniOEÜ

Ofnlv husband and bccause l did not receive thcdeaZR l l have alrcaZ>ost tthOuSe becallsC ofhe dca,Ê

bene·¡ frorrlthe insurance policv which was supposed to pay ofFthe rnortgage in the event ofhis d t of al r T a l d e c l a r e u n d e r p e np e J u 7 ·t¡ t h e f o r e g o i n g i s t r u e a n d c o r r e c t o f m y o w n 3, kno·Ã edge.Executed J San Frandsco.CdifomF Deeetriber On

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Case 3:07-cv-04723-MHP

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PROOF OF SERVICE I, the undersigned, declare as follows: I am employed in the City and County of San Francisco, State of California. I am over the age of eighteen (18) and am not a party to this action. My business address is 135 Belvedere Street, San Francisco, California 94117. On the date set forth below, I served the document(s) entitled: DECLARATION OF ROSA RIVERA KEEL IN SUPPORT OF DEFENDANT'S SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA'S ANTI-SLAPP STATUTE on the parties in this action as follows: MANATT, PHELPS & PHILLIPS, LLP HENRY C. WANG CHARLES GOMEZ 11355 West Olympic Boulevard Los Angeles, CA 9006-1614 X [BY MAIL] I placed the above document(s) in an envelope which was sealed, with postage thereon fully prepaid, and placed in the United States mail in San Francisco, California. I am "readily familiar" with the practice of The Law Offices of Frank S. Moore for collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection. [VIA FACSIMILE] I transmitted the above-named documents (without attachments) at approximately __:__ _.m. on ____________, via facsimile number (415) 292-6091 to (310) 312-4224. The facsimile machine I used conveyed no error in the transmission. The transmission report was properly issued by the transmitting facsimile machine. [VIA FEDERAL EXPRESS] I am "readily familiar" with the practice of The Law Offices of William L. Osterhoudt for collection and processing of correspondence for deposit with Federal Express for overnight delivery service. Correspondence for collection and processing is either delivered to a courier or driver authorized by Federal Express to receive documents or deposited by an employee or agent of this firm in a box or facility regularly maintained by Federal Express that same day in the ordinary course of business. [VIA HAND DELIVERY BY EXPRESS COURIER] I am "readily familiar" with the practice of The Law Offices of William L. Osterhoudt for collection and processing of documents that are hand delivered via courier (Silver Bullet Delivery) and I cause the above document(s) to be delivered to Silver Bullet Delivery which in turn hand delivered the above document(s) to counsel at the address listed above on this date. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

/s/ signature on file Frank S. Moore

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OM FINANCIAL SERVICES COMPANY v. ROSA RIVERA KEEL, et al. Case No. C07-04723 MHP

DECLARATION OF ROSA RIVERA KEEL IN SUPPORT OF DEFENDANT'S SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA'S ANTI-SLAPP STATUTE

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