defendants notice to superior court clerk of filing of removal and rem

Cal. Super. - 1st Dist.November 6, 2020

- 1 - DEFENDANT’S NOTICE TO THE CLERK OF THE SUPERIOR COURT OF THE FILING OF REMOVAL AND REMOVAL OF ACTION TO FEDERAL COURT KYL4822-2756-0388.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAMUEL A. KEESAL, JR., CASB No. 38014 skip.keesal@kyl.com JODI S. COHEN, CASB No. 151534 jodi.cohen@kyl.com NATALIE M. LAGUNAS, CASB No. 318634 natalie.lagunas@kyl.com KEESAL, YOUNG & LOGAN A Professional Corporation 400 Oceangate, Suite 1400 Long Beach, California 90802 Telephone: (562) 436-2000 Facsimile: (562) 436-7416 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO GLENN PAPE, Plaintiff, vs. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CGC-20-585145 Action Filed: June 26, 2020 DEFENDANT’S NOTICE TO THE CLERK OF THE SUPERIOR COURT OF THE FILING OF REMOVAL AND REMOVAL OF ACTION TO FEDERAL COURT ASSIGNED FOR ALL PURPOSES TO: Judge ___________, Dept. __ TO THE CLERK OF THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE: PLEASE TAKE NOTICE that Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“Defendant”) has removed the above-entitled action to the United States District Court for the Northern District of California. Attached hereto as Exhibit “A” are true and correct copies of the Notice of Filing of Removal of Action, Notice of Removal, Declaration of Natalie M. Lagunas, and Declaration of Tamika S. Williams, the originals of which have been filed in the United States District Court for the Northern District of California in connection with the above- entitled action. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/16/2020 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk - 2 - DEFENDANT’S NOTICE TO THE CLERK OF THE SUPERIOR COURT OF THE FILING OF REMOVAL AND REMOVAL OF ACTION TO FEDERAL COURT KYL4822-2756-0388.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE FURTHER NOTICE that pursuant to 28 U.S.C. § 1446(d), the filing of the attached Notice of Removal with the federal court effects removal of this action, and this Court may proceed no further unless and until the case is remanded. DATED: September 16, 2020 SAMUEL A. KEESAL, JR JODI S. COHEN NATALIE M. LAGUNAS KEESAL, YOUNG & LOGAN Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA EXHIBIT A - 1 - NOTICE OF FILING OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-06462 KYL4819-8324-3972.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAMUEL A. KEESAL, JR., CASB No. 38014 skip.keesal@kyl.com JODI S. COHEN, CASB No. 151534 jodi.cohen@kyl.com NATALIE M. LAGUNAS, CASB No. 318634 natalie.lagunas@kyl.com KEESAL, YOUNG & LOGAN A Professional Corporation 400 Oceangate, Suite 1400 Long Beach, California 90802 Telephone: (562) 436-2000 Facsimile: (562) 436-7416 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GLENN PAPE, Plaintiff, vs. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 3:20-cv-06462 NOTICE OF FILING OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441(A), AND 1446 [DIVERSITY JURISDICTION] TO PLAINTIFF GLENN PAPE AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 16, 2020, Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“Defendant”) filed in the United States District Court, Northern District of California, a Notice of Filing of Removal of the above-entitled action to the United States District Court from the Superior Court of the State of California for the County of San Francisco pursuant to 28 U.S.C. §§ 1332, 1441(a), and 1446. PLEASE TAKE FURTHER NOTICE that on September 16, 2020, Defendant filed a Notice of Filing of Removal and Removal of Action to Federal Court, together with a copy of the /// - 2 - NOTICE OF FILING OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-06462 KYL4819-8324-3972.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Removal, with the Clerk of the Superior Court of the State of California for the County of San Francisco. A true and correct copy of the Notice is attached hereto as Exhibit A. DATED: September 16, 2020 _______________________________________ SAMUEL A. KEESAL, JR. JODI S. COHEN NATALIE M. LAGUNAS KEESAL, YOUNG & LOGAN Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA Case Name: Glenn Pape v. The Prudential Insurance Company of America San Francisco Superior Court Case No.: CGC-20-585145 USDC Northern District Case No: 3:20-cv-06462 KYL File No.: 4592-28 - 1 - Proof of Service 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is Keesal, Young & Logan, 400 Oceangate, Suite 1400, Long Beach, California 90802. On September 16, 2020, I served the foregoing documents described as DEFENDANT THE PRUDENTIAL INSURANCE COMPANY OF AMERICA’S NOTICE OF FILING OF REMOVAL on the parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Teresa S. Renaker, Esq. Margo Hasselman Greenough, Esq. Kirsten G. Scott, Esq. RENAKER HASSELMAN SCOTT LLP 505 Montgomery Street, Ste 1125 San Francisco, CA 94111 Ph. (415) 653-1733 Fax: (415) 727-5079 Email:teresa@renakerhasselman.com margo@renakerhasselman.com kirsten@renakerhasselman.com Attorneys for Plaintiff, GLENN PAPE BY U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed to the above-named persons at the addresses exhibited therewith and (specify one): I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Executed on September 16, 2020 at Long Beach, California. I declare under penalty of perjury under the laws of the State of California and United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. _________________________ STEPHANIE FRIEBURG - 1 - NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-20-6462 KYL4818-9968-7370.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAMUEL A. KEESAL, JR., CASB No. 38014 skip.keesal@kyl.com JODI S. COHEN, CASB No. 151534 jodi.cohen@kyl.com NATALIE M. LAGUNAS, CASB No. 318634 natalie.lagunas@kyl.com KEESAL, YOUNG & LOGAN A Professional Corporation 400 Oceangate, Suite 1400 Long Beach, California 90802 Telephone: (562) 436-2000 Facsimile: (562) 436-7416 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GLENN PAPE, Plaintiff, vs. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 3:20-cv-06462 NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 [DIVERSITY JURISDICTION] TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: PLEASE TAKE NOTICE that Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“Defendant”) hereby removes to this Court the State Court action described below: I. BACKGROUND AND TIMELINESS 1. On June 26, 2020, Plaintiff GLENN PAPE (hereinafter “Plaintiff”) filed a Complaint in the Superior Court of the State of California, County of San Francisco, thereby - 2 - NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-20-6462 KYL4818-9968-7370.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 commencing a civil action entitled Glenn Pape v. The Prudential Insurance Company of America, Case No. CGC-20-585145 (the “State Court Action”), against Defendant. A true and correct copy of all processes, pleadings and orders served on August 17, 2020 in the State Court Action, including the aforementioned Complaint, are attached hereto as Exhibit “A.” See Declaration of Natalie M. Lagunas in support of Notice of Removal (“Lagunas Decl.”), ¶ 3. 2. Defendant was served with the Complaint on August 17, 2020. A true and correct copy of the service of the Complaint is attached hereto as Exhibit “B.” See Lagunas Decl., ¶ 4. 3. Defendant filed and served its Answer to Plaintiff’s Complaint on September 14, 2020. A true and correct copy of Defendant’s Answer is attached hereto as Exhibit “C.” See Lagunas Decl., ¶ 5. 4. Collectively, Exhibits “A”-“C” constitute all summons, pleadings and orders served on Defendant in the State Court Action. See Lagunas Decl., ¶¶ 3-5. 5. As required by 28 U.S.C. § 1446(b)(3), this Notice of Removal is timely because it is being filed within thirty (30) days from service of the Complaint on Defendant August 17, 2020. See Fed. R. Civ. P. 6(a)(1)(C); Lagunas Decl., ¶¶ 4, 7. 6. Plaintiff alleges Prudential has wrongfully refused to pay his long term disability (“LTD”) benefits that he claims are due under a Group Insurance Contract issued by Prudential to the trustee of the American Institute of Certified Public Accountings Insurance Trust (“AICPA”). (Exhibit “A.”) 7. Plaintiff’s causes of action against Prudential are breach of contract and breach of the implied covenant of good faith and fair dealing. (Exhibit “A.”) 8. Plaintiff seeks LTD benefits of “$3,000 per month, from January 1, 2020, through the date that judgment is entered herein, together with prejudgment interest at ten percent from the date each such payment was due,” LTD benefits of “$3,000 per month from the date of judgment until [Plaintiff] recovers from his disability or dies,” “special damages, including economic and incidental damages, past and future,” restitution and attorneys’ fees and costs of suit. (Exhibit “A.”) /// - 3 - NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-20-6462 KYL4818-9968-7370.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. JURISDICTIONAL BASIS FOR REMOVAL - DIVERSITY 9. Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants to the district court of the United States in the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). 10. The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, and is between citizens of different states. 28 U.S.C. § 1332. Diversity jurisdiction exists to provide a “neutral” forum in cases where one or more of the parties is a citizen of another state or country, and to protect against local prejudice in state courts. See Asher v. Pac. Power and Light Co., 249 F. Supp. 671, 674 (N.D. Cal. 1965). 11. Here, this Court has original jurisdiction because complete diversity exists between Plaintiff and Defendants, and the amount in controversy exceeds $75,000. The Parties Are Diverse 12. Plaintiff is a resident and citizen of the State of California. (Exhibit “A.”) 13. Section 1332 defines corporate citizenship as follows: “[f]or the purposes of this section and section 1441 of this title . . . a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business . . . .” 28 U.S.C. § 1332(c). 14. Prudential is incorporated under the laws of the State of New Jersey, and its principal place of business is located in Newark, New Jersey. (See Declaration of Tamika Williams (“Williams Decl.”)); see also 28 U.S.C. § 1332(c)(1) (“corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business . . . .”); Hertz Corp. v. Friend, 559 U.S. 77, 81 (2010) (principal place of business refers to “nerve center” where corporation’s high level officers direct, control and coordinate the corporation’s activities). /// - 4 - NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-20-6462 KYL4818-9968-7370.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Thus, Plaintiff and Defendants are citizens of different states, and this case is “between citizens of different states.” 28 U.S.C. §§ 1332(a), (c). The Amount In Controversy Exceeds $75,000 16. Regarding the breach of contract and breach of the implied covenant of good faith and fair dealing claims, Plaintiff demands LTD benefits of “$3,000 per month, from January 1, 2020, through the date that judgment is entered herein, together with prejudgment interest at ten percent from the date each such payment was due,” LTD benefits of “$3,000 per month from the date of judgment until [Plaintiff] recovers from his disability or dies,” “special damages, including economic and incidental damages, past and future,” restitution and attorneys’ fees and costs of suit. (Exhibit “A.”) 17. Pursuant to the terms and conditions of the Group Insurance Contract at issue, the total LTD benefits Plaintiff may recover as of the time of the filing of this Notice of Removal is $25,600. See Williams Decl. ¶ 5; see also Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010)(quoting McPhail v. Deere & Co., 529 F.3d 947, 956 (10th Cir. 2008))(“The amount in controversy is not proof of the amount the plaintiff will recover. Rather, it is an estimate of the amount that will be put at issue in the course of the litigation.”) 18. For purposes of calculating the amount in controversy, the future benefits Plaintiff would receive under the Group Insurance Contract must be included. See, e.g., Albino v. Std. Ins. Co., 349 F. Supp. 2d 1334, 1340 (C.D. Cal. 2004) (finding that the amount in controversy was met because plaintiff's future policy benefits could be awarded as compensatory damages under her claim for tortious breach of the covenant of good faith and fair dealing); see also Duarte v. Standard Ins. Co., No. 08-03021 JSW, 2008 U.S. Dist. LEXIS 111045, at *10 (N.D. Cal. Aug. 26, 2008) (finding that the “value of future benefits impacts the total value of [Plaintiff’s] claim much like the value of future lost wages.”) Plaintiff claims he is entitled to LTD benefits for his lifetime. If that were the case and if Plaintiff lived 18 years (which is the current Social Security life expectancy for a male aged 66) the present value of future benefits would be $422,087.43.1 See Williams Decl. ¶ 5. 1 The Social Security life expectancy is being used solely for purposes of removal - it is likely that the - 5 - NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-20-6462 KYL4818-9968-7370.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. The Ninth Circuit has concluded that attorneys’ fees are to be included in the amount in controversy for the purposes of establishing diversity jurisdiction. See Goldberg v. CPC Int'l, Inc., 678 F.2d 1365, 1367 (9th Cir. 1982)(“[A]ttorney's fees can be taken into account in determining the amount in controversy if a statute authorizes fees to a successful litigant.”); Conrad Assocs. v. Hartford Accident & Indem. Co., 994 F. Supp. 1196, 1199 (N.D. Cal. 1998)(“Since the amount in controversy may include attorney’s fees if recoverable by statute or contract, attorney fees recoverable under Brandt may be considered in determining whether the amount in controversy exceeds the jurisdictional floor.”). 20. Under California law, attorneys’ fees incurred in obtaining contract benefits are recoverable when the insurer withheld those benefits in bad faith. See Brandt v. Superior Court (Standard Ins. Co.), 37 Cal.3d 813, 817(1985). Plaintiff alleges that Defendant’s withholding of benefits under the Group Insurance Contract was done so in bad faith. (Exhibit “A.”) Accordingly, the attorneys’ fees that would accrue until this action is resolved must be included in the amount in controversy calculation as well. 21. Attorneys’ fees in cases where LTD benefits are sought can easily range from $51,000 to $75,000. See Harder v. Bristol-Myers Squibb Co. Long Term Disability Plan, No. CV 17- 1426 PA (GJSx), 2018 U.S. Dist. LEXIS 30750, at *16 (C.D. Cal. Feb. 26, 2018)(awarding $112,910 in attorneys’ fees in an action for recovery of LTD disability benefits); see also Cain v. Hartford Life & Accident Ins. Co., 890 F. Supp. 2d 1246, 1250 (C.D. Cal. 2012)(“[E]ven a minimal award of attorney’s fees would cause the amount in controversy to exceed the jurisdictional minimum.”). 22. Plaintiff’s primary counsels’ are both experienced attorneys and regularly represent plaintiffs in insurance claim denial litigation. See Lagunas Decl. ¶ 6. Accordingly, attorneys’ fees calculated at a reasonable hourly rate, based on counsels’ experience, should be included in the amount in controversy. See Lagunas Decl. ¶ 6; see also Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 795 (9th Cir. 2018)(quoting Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Plaintiff, as a disabled individual, would have a lower life expectancy than the average individual represented by the Social Security tables. See Williams Decl. ¶ 5. - 6 - NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-20-6462 KYL4818-9968-7370.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cir. 2011))(“[i]n estimating future attorneys' fees, district courts may…rely on ‘their own knowledge of customary rates and their experience concerning reasonable and proper fees.’”). 23. As mentioned above, Plaintiff also seeks recovery of special damages, including economic and incidental damages, which also are included in the amount in controversy calculations. See, e.g., Richmond v. Allstate Ins. Co., 897 F. Supp. 447, 450-451 (S.D. Cal. 1995); see also Koop v. AMCO Ins. Co., Case No. 16-cv-01963-LB, 2016 U.S. Dist. LEXIS 83258, *16 (N.D. Cal. 2016). 24. Accordingly, given the amount of benefits at issue and the potential recovery of attorneys’ fees and the prayer for special damages, the amount in controversy is more than $75,000, and this is properly removable to federal court. See 28 U.S.C. § 1332(c). III. VENUE AND NOTICE TO STATE COURT AND PLAINTIFF 25. Removal is appropriate “to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). 26. Plaintiff filed the State Court Action in the Superior Court of the State of California, in and for the County of San Francisco. 27. Pursuant to 28 U.S.C. § 1446(a), Defendant is removing this case to the United States District Court for the Northern District of California, which is the district and division in which the State Court Action is pending. See Lagunas Decl., ¶ 8. 28. Promptly upon the filing of this Notice of Removal, Prudential shall file a Notice of Filing of Notice of Removal, with a copy of the Notice of Removal with the Superior Court of California, County of San Francisco, and will serve a copy thereof on Plaintiff through counsel, pursuant to 28 U.S.C. § 1446(d). See Lagunas Decl. ¶ 9. A true and correct copy of Prudential’s Notice to Clerk of Superior Court is attached hereto as Exhibit “D” and a true and correct copy of Prudential’s Notice to Adverse Party is attached hereto as Exhibit “E.” /// /// - 7 - NOTICE OF REMOVAL BY DEFENDANT UNDER 28 U.S.C. §§ 1332, 1441(A), AND 1446 - Case No. 3:20-cv-20-6462 KYL4818-9968-7370.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION 29. Prudential submits this Notice of Removal without waiving any defenses to the claims asserted by Plaintiff, without conceding that Plaintiff has pleaded claims upon which relief can be granted, and without admitting that Plaintiff is entitled to any monetary or equitable relief whatsoever (or that the damages she seeks may be properly sought). 30. Should Plaintiff seek to remand this case to state court, Prudential respectfully asks that it be permitted to brief and argue the issue of this removal prior to any order remanding this case. In the event the Court decides remand is proper, Prudential asks that the Court retain jurisdiction and allow Prudential to file a motion asking this Court to certify any remand order for interlocutory review by the Ninth Circuit Court of Appeals, pursuant to 28 U.S.C. § 1292(b). 31. Based on the foregoing, this Court has original jurisdiction over this action based on diversity jurisdiction under 28 U.S.C. § 1331; therefore, the Court may properly exercise jurisdiction over this lawsuit. 28 U.S.C. § 1441(a). WHEREFORE, Prudential submits that this action is properly removable based on diversity jurisdiction and respectfully requests that San Francisco County Superior Court Case No. CGC-20-585145 be removed to the United States District Court for the Northern District of California. Prudential also requests all other relief, at law or in equity, to which it justly is entitled. DATED: September 16, 2020 _______________________________________ SAMUEL A. KEESAL, JR. JODI S. COHEN NATALIE M. LAGUNAS KEESAL, YOUNG & LOGAN Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA Case Name: Glenn Pape v. The Prudential Insurance Company of America San Francisco Superior Court Case No.: CGC-20-585145 USDC Northern District Case No: 3:20-cv-06462 KYL File No.: 4592-28 - 1 - Proof of Service 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is Keesal, Young & Logan, 400 Oceangate, Suite 1400, Long Beach, California 90802. On September 16, 2020, I served the foregoing documents described as DEFENDANT THE PRUDENTIAL INSURANCE COMPANY OF AMERICA’S NOTICE OF REMOVAL on the parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Teresa S. Renaker, Esq. Margo Hasselman Greenough, Esq. Kirsten G. Scott, Esq. RENAKER HASSELMAN SCOTT LLP 505 Montgomery Street, Ste 1125 San Francisco, CA 94111 Ph. (415) 653-1733 Fax: (415) 727-5079 Email:teresa@renakerhasselman.com margo@renakerhasselman.com kirsten@renakerhasselman.com Attorneys for Plaintiff, GLENN PAPE BY U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed to the above-named persons at the addresses exhibited therewith and (specify one): I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Executed on September 16, 2020 at Long Beach, California. I declare under penalty of perjury under the laws of the State of California and United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. _________________________ STEPHANIE FRIEBURG - 1 - DECLARATION OF NATALIE M. LAGUNAS IN SUPPORT OF NOTICE OF REMOVAL - Case No. 3:20-cv-06462 KYL4825-4416-6596.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAMUEL A. KEESAL, JR., CASB No. 38014 skip.keesal@kyl.com JODI S. COHEN, CASB No. 151534 jodi.cohen@kyl.com NATALIE M. LAGUNAS, CASB No. 318634 natalie.lagunas@kyl.com KEESAL, YOUNG & LOGAN A Professional Corporation 400 Oceangate, Suite 1400 Long Beach, California 90802 Telephone: (562) 436-2000 Facsimile: (562) 436-7416 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GLENN PAPE, Plaintiff, vs. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 3:20-cv-06462 DECLARATION OF NATALIE M. LAGUNAS IN SUPPORT OF NOTICE OF REMOVAL I, NATALIE M. LAGUNAS, declare as follows: 1. I am an attorney duly licensed to practice before all the courts of the State of California and I am an associate in the law firm of Keesal, Young & Logan, counsel for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“Defendant”). The following facts and circumstances are of my own personal knowledge, except as to those matters which are stated herein on information and belief and, as to them, I believe them to be true. If requested to testify as a witness, I could and would competently testify to the following: 2. This Declaration is submitted in support of Defendant’s Notice of Removal filed in the above stated action. - 2 - DECLARATION OF NATALIE M. LAGUNAS IN SUPPORT OF NOTICE OF REMOVAL - Case No. 3:20-cv-06462 KYL4825-4416-6596.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. I am informed and believe that on June 26, 2020, Plaintiff GLENN PAPE (herein “Plaintiff”) filed a Complaint in the Superior Court of the State of California, County of San Francisco, thereby commencing a civil action entitled Glenn Pape v. The Prudential Insurance Company of America, Case No. CGC-20-585145 (the “State Court Action”), against Defendant. A true and correct copy of all processes, pleadings and orders served in the State Court Action, including the aforementioned Complaint, are attached as Exhibit “A” to Defendant’s concurrently filed Notice of Removal. 4. Plaintiff effected service on Defendant on August 17, 2020. A true and correct copy of the service is attached as Exhibit “B” to Defendant’s concurrently filed Notice of Removal. 5. On September 14, 2020, Defendant filed its Answer to the Complaint, denying the allegations therein. A true and correct copy of the Answer is attached as Exhibit “C” to Defendant’s concurrently filed Notice of Removal. Collectively, Exhibits “A”-“C” constitute all of the summons, pleadings and orders served on Defendant in the State Court Action. 6. Upon information and belief, Ms. Renaker, counsel for Plaintiff, is an experienced attorney and regularly represents plaintiffs in insurance claim denial litigation. Similarly, Ms. Hasselman Greenough, counsel for Plaintiff, is an experienced attorney and regularly represents plaintiffs in insurance claim denial litigation. Finally, Ms. Scott, counsel for Plaintiff, is an experienced attorney and regularly represents plaintiffs in insurance claim denial litigation. Accordingly, attorneys’ fees calculated at a reasonable hourly rate, based on counsels’ experience, should be included in the amount in controversy. True and correct copies of Ms. Renaker’s, Ms. Hasselman Greenough’s and Ms. Scott’s professional profiles, as provided on their website, are attached hereto as Exhibits 1, 2 and 3, respectively. 7. This Notice of Removal is filed within thirty (30) days of Defendant’s receipt of the Summons and Complaint and/or within thirty (30) days of the date that Defendant received notice of removability. 8. The State Court in which this action was commenced, the Superior Court of California, County of San Francisco, is within this Court’s District. /// - 3 - DECLARATION OF NATALIE M. LAGUNAS IN SUPPORT OF NOTICE OF REMOVAL - Case No. 3:20-cv-06462 KYL4825-4416-6596.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Defendant’s Notice of Removal is concurrently being filed with the Superior Court of California, County of San Francisco and served on Plaintiff, as reflected by Exhibit “D” and Exhibit “E,” respectively, attached to Defendant’s concurrently filed Notice of Removal. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 16th day of September, 2020, at Long Beach, California. NATALIE M. LAGUNAS Case Name: Glenn Pape v. The Prudential Insurance Company of America San Francisco Superior Court Case No.: CGC-20-585145 USDC Northern District Case No: 3:20-cv-06462 KYL File No.: 4592-28 - 1 - Proof of Service 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is Keesal, Young & Logan, 400 Oceangate, Suite 1400, Long Beach, California 90802. On September 16, 2020, I served the foregoing documents described as DECLARATION OF NATALIE LAGUNAS IN SUPPORT OF DEFENDANT THE PRUDENTIAL INSURANCE COMPANY OF AMERICA’S REMOVAL on the parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Teresa S. Renaker, Esq. Margo Hasselman Greenough, Esq. Kirsten G. Scott, Esq. RENAKER HASSELMAN SCOTT LLP 505 Montgomery Street, Ste 1125 San Francisco, CA 94111 Ph. (415) 653-1733 Fax: (415) 727-5079 Email:teresa@renakerhasselman.com margo@renakerhasselman.com kirsten@renakerhasselman.com Attorneys for Plaintiff, GLENN PAPE BY U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed to the above-named persons at the addresses exhibited therewith and (specify one): I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Executed on September 16, 2020 at Long Beach, California. I declare under penalty of perjury under the laws of the State of California and United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. _________________________ STEPHANIE FRIEBURG - 1 - DECLARATION OF TAMIKA S. WILLIAMS IN SUPPORT OF NOTICE OF REMOVAL- Case No. 3:20-cv-20-6462 KYL4814-1262-3818.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAMUEL A. KEESAL, JR., CASB No. 38014 skip.keesal@kyl.com JODI S. COHEN, CASB No. 151534 jodi.cohen@kyl.com NATALIE M. LAGUNAS, CASB No. 318634 natalie.lagunas@kyl.com KEESAL, YOUNG & LOGAN A Professional Corporation 400 Oceangate, Suite 1400 Long Beach, California 90802 Telephone: (562) 436-2000 Facsimile: (562) 436-7416 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GLENN PAPE, Plaintiff, vs. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 3:20-cv-06462 DECLARATION OF TAMIKA S. WILLIAMS IN SUPPORT OF NOTICE OF REMOVAL [DIVERSITY JURISDICTION] I, TAMIKA S. WILLIAMS, declare as follows: 1. I am employed by The Prudential Insurance Company of America (“Prudential”) as a Claims Litigation Specialist. I make this Declaration in support of the Notice of Removal filed in the above stated action. I have personal knowledge of the following facts and if called as a witness, would and could competently testify thereto. 2. Prudential is a corporation organized under the laws of the state of New Jersey and Prudential has its principal place of business in New Jersey. - 2 - DECLARATION OF TAMIKA S. WILLIAMS IN SUPPORT OF NOTICE OF REMOVAL- Case No. 3:20-cv-20-6462 KYL4814-1262-3818.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. I have examined certain of the business records created and maintained by Prudential in the ordinary course of business relating to the disability benefits potentially payable to Plaintiff GLENN PAPE (“Plaintiff”). 4. Plaintiff seeks long term disability (“LTD”) benefits under Group Contract No. GZ-14273 (the “Group Insurance Contract”) issued to the American Institute of Certified Public Accountings Insurance Trust. If Plaintiff meets the requirements of LTD coverage under the Group Insurance Contract, he would be entitled to a monthly benefit of $3,000, subject to the Group Insurance Contract’s other terms and conditions. This is based on the Scheduled Benefit amount set forth in the Group Insurance Contract. 5. If determined to be eligible for any additional LTD benefits, Plaintiff’s monthly benefit would be $3,000. Accordingly, pursuant to the terms and conditions of the Group Insurance Contract at issue, Plaintiff’s total LTD benefits he may recover as of July 31, 2020 is $21,000 (7 months multiplied by $3,000). I understand the Plaintiff claims he is entitled to LTD benefits for his lifetime. If that were the case and if the Plaintiff lived 18 years (which is the current Social Security life expectancy for a male aged 66) the present value of future benefits would be $423,268.22. I am using this life expectancy solely for purposes of removal - it is likely that the Plaintiff, as a disabled individual, would have a lower life expectancy than the average individual represented by the Social Security tables. 6. Pursuant to Civil Local Rule 5-1(i)(3), I am using a conformed signature and counsel is including a signature attestation below. /// /// - 3 - DECLARATION OF TAMIKA S. WILLIAMS IN SUPPORT OF NOTICE OF REMOVAL- Case No. 3:20-cv-20-6462 KYL4814-1262-3818.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 16th day of September 2020. /s/ Tamika S. Williams TAMIKA S. WILLIAMS SIGNATURE ATTESTATION Pursuant to Civil Local Rule 5-1(i)(3), I attest under penalty of perjury that I have on file all holographic signatures corresponding to any signatures indicated by a confirmed signature (/S/) within this e-filed document. DATED: September 16, 2020 _______________________________________ SAMUEL A. KEESAL, JR. JODI S. COHEN NATALIE M. LAGUNAS KEESAL, YOUNG & LOGAN Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA Case Name: Glenn Pape v. The Prudential Insurance Company of America San Francisco Superior Court Case No.: CGC-20-585145 USDC Northern District Case No: 3:20-cv-06462 KYL File No.: 4592-28 - 1 - Proof of Service 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is Keesal, Young & Logan, 400 Oceangate, Suite 1400, Long Beach, California 90802. On September 16, 2020, I served the foregoing documents described as DECLARATION OF TAMIKA WILLIAMS IN SUPPORT OF DEFENDANT THE PRUDENTIAL INSURANCE COMPANY OF AMERICA’S REMOVAL on the parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Teresa S. Renaker, Esq. Margo Hasselman Greenough, Esq. Kirsten G. Scott, Esq. RENAKER HASSELMAN SCOTT LLP 505 Montgomery Street, Ste 1125 San Francisco, CA 94111 Ph. (415) 653-1733 Fax: (415) 727-5079 Email:teresa@renakerhasselman.com margo@renakerhasselman.com kirsten@renakerhasselman.com Attorneys for Plaintiff, GLENN PAPE BY U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed to the above-named persons at the addresses exhibited therewith and (specify one): I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Executed on September 16, 2020 at Long Beach, California. I declare under penalty of perjury under the laws of the State of California and United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. _________________________ STEPHANIE FRIEBURG Case Name: Glenn Pape v. The Prudential Insurance Company of America San Francisco Superior Court Case No.: CGC-20-585145 USDC Northern District Case No: 3:20-cv-06462 KYL File No.: 4592-28 - 1 - Proof of Service 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is Keesal, Young & Logan, 400 Oceangate, Suite 1400, Long Beach, California 90802. On September 16, 2020, I served the foregoing documents described as NOTICE TO CLERK OF THE SUPERIOR COURT OF FILING OF REMOVAL AND REMOVAL OF ACTION TO FEDERAL COURT on the parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Teresa S. Renaker, Esq. Margo Hasselman Greenough, Esq. Kirsten G. Scott, Esq. RENAKER HASSELMAN SCOTT LLP 505 Montgomery Street, Ste 1125 San Francisco, CA 94111 Ph. (415) 653-1733 Fax: (415) 727-5079 Email:teresa@renakerhasselman.com margo@renakerhasselman.com kirsten@renakerhasselman.com Attorneys for Plaintiff, GLENN PAPE BY U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed to the above-named persons at the addresses exhibited therewith and (specify one): I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Executed on September 16, 2020 at Long Beach, California. I declare under penalty of perjury under the laws of the State of California and United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. _________________________ STEPHANIE FRIEBURG