HECKART v. A-1 SELF STORAGEAmicus Curiae, Dave Jones, Request for Judicial NoticeCal.September 12, 2017In the Supreme Court of the State of California SAMUEL HECKART, Plaintiff-Appellant, Case No. $232322 v. SUPREME COURT A-1 SELF STORAGE,INC.,et al., , F | i E D Defendants and Respondents. SEP 1 2 2017 Jorge Navarrete Clerk Court of Appeal, Fourth Appellate District, Division One, Case No. D066831 Deputy San Diego County Superior Court, Case No. 37-2013-00042315-CU-BT-CTL The Honorable John Meyer, Judge REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF BRIEF OF THE INSURANCE COMMISSIONER OF THE STATE OF CALIFORNIA, INVITED AMICUS CURIAE; SUPPORTING DECLARATION OF MOLLY K. MOSLEY AND EXHIBITS A-B XAVIER BECERRA Attorney General of California DIANE S. SHAW Senior Assistant Attorney General *MOLLY K. MOSLEY Supervising Deputy Attorney General State Bar No. 27384 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-7358 Email: Molly.Mosley@doj.ca.gov Attorneysfor Amicus Curiae, Dave Jones, Insurance Commissionerfor the State of California AMICUS CURIAE REQUEST FOR JUDICIAL NOTICE PLEASE TAKE NOTICEthat pursuant to California Rules of Court, rules 8.252 and 8.520(g) and Evidence Code sections 452 and 459, the Insurance Commissionerofthe State of California requests that this Court take judicial notice of the following documents, which are attached as Exhibits A through B to the Supporting Declaration of Molly K. Mosley, filed with this request: Exhibit A: Senate Commission on Insurance, Assembly Bill No. 2520 (2003-2004 Regular Session) as amended April 27, 2004; and - Exhibit B: Senate Rules Committee, Office of Senate Floor Analyses, third reading analysis of Assembly Bill No. 2520 (2003-2004 Regular Session) as amendedJul. 22, 2004. The legislative history of Assembly Bill (AB) 2520is relevant to the issues before this Court, including the issues raised in the Commissioner’s amicus curiae brief and addressed therein, becausethe legislative history identifies the purposeofthe provisions of Article 16.3, Insurance Code sections 1758.7 et seq. and the Commissioner’s contemporaneousposition regarding AB 2520. Exhibits A through B were notpresentedto thetrial court or to the court of appeal because the filing of the Commissioner’s invited amicus curiae brief in this Court is the Commissioner’s first involvementin this action. Under Evidence Code sections 452 and 459, the legislative history of AB 2520 is subject to judicial notice by this Court becauseall of the portions ofthe legislative history referred to in the Commissioner’s brief are “[o|fficial acts ofthe legislative, executive, and judicial departments” of California. (Evid. Code, § 452, subd.(c).) Further, this Court has taken judicial notice oflegislative history introduced by amicus curiae. (Post v. Palo/Haklar & Assocs. (2000) 23 Cal.4th 942, 950.) For the foregoing reasons, the Commissioner respectfully requests that the Court take Judicial Notice of Exhibits A throughB to the supporting declaration of Molly K. Mosley. Dated: September 8, 2017 Respectfully submitted, XAVIER BECERRA Attorney General of California DIANE S. SHAW Senior Assistant Attorney General Supervising Deputy Attorney General Attorneysfor Amicus Curiae, Dave Jones, Insurance Commissionerfor the State of California SA2017901432 33034373.doc DECLARATION OF MOLLY K. MOSLEY _ I, MOLLY K. MOSLEY,declare: 1. Iam admitted to practice in the State of California and employed with the California Attorney General’s Office, which serves as counsel for Dave Jones, Insurance Commissioner of the State of California. I am the attorney of record. I have personal knowledge of the facts set forth herein. 2. Attached hereto as Exhibit A is a true and correct copy of a portion of the legislative history of Assembly Bill No. 2520, specifically the Senate Committee on Insurance, Assembly Bill No. 2520 (2003-2004 Regular Session), as amended April 27, 2004. J obtained it from the official website, https://leginfo.legislature.ca.gov, on September 8, 2017. 3. Attached hereto as Exhibit B is a true and correct copy of a portion of the legislative history of Assembly Bill No. 2520, specifically the Sen. Rules Committee, Office of Senate Floor Analyses, 3d reading analysis of Assembly Bill No. 2520 (2003-2004 Reg. Sess.), as amended Jul. 22, 2004. I obtained it from the official website, https://leginfo.legislature.ca.gov, on August 20, 2017. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct and that this declaration was executed in Sacramento, California on September8, 2017. MOLLY K.MOSLEY ) EXHIBIT A 9/8/2017 AB 2520 AssemblyBill - Bill Analysis SENATE COMMITTEE ON INSURANCE Senator Jackie Speier, Chair AB 2520 (Vargas) Hearing Date: June 16, 2004 As Amended:April 27, 2004 Fiscal: Yes Urgency: No VOTES: : Asm. Ins. DPA:15-@ Asm. Appr. DP: 20-1 Asm. Fl. Passed:73-6 SUMMARY Would require self-service storage facilities and their franchisees that sell insurance in connection with self-service storage rental agreements to obtain a license from the Insurance Commissioner (IC), require such licensees to provide training to their employees, allow the facility to collect the monthly storage fee and insurance premium in one check, and would impose other specified duties. DIGEST Existing law 1. Provides that, in general, a person shall not negotiate or sell contracts of insurance unless he or she has been licensed by the IC to act in that capacity, and makes it a crime to act in that capacity without a license; 2. Allows for the sale of limited lines of insurance by retail vendors of communications equipment and rental cars and their agents, and credit insurance agents, under specified conditions. This bill 1. Would create a new limited line of insurance category to regulate the offering for sale of insurance by self-service storage facilities in California; https://leginfo legislature.ca.gov/faces/billAnalysisClient.xhtml 17 9/8/2017 AB 2520 AssemblyBill - Bill Analysis ; AB 2520, Page 2 of ? , 2. Would require any self-service storage facility, or franchisee of that facility, that sells insurance in connection with, and incidental to, self service rental agreements to be licensed by the IC; 3. Would require that license to be renewed every two years; 4. Would require the applicant for a license under this article pay a fee, to be determined by the DOI and sufficient to defray the actual costs of implementing this article, upon application and renewal; 5. Would require licensees to provide certain written information to the IC, including a certificate by the insurer that is named in the self-service storage agent license stating that the applicant is trustworthy and competent to act as its agent for the purpose of selling insurance specific to self-service storage agreements; 6. Would require each self-service storage licensee to provide training and instruction to its employees regarding the types of insurance offered for sale to prospective renters, ethical sales practices, and disclosures to renters required by this article, and would require all training materials, and any subsequent modifications, to be submitted to the DOI at least 30 days priorto use; 7. Would provide that if the licensee or any of its employees violate any of these provisions, the IC may revoke or suspend its license or impose other fines and penalties; 8. Would provide that the self-service storage facility license to sell insurance is limited to hazard insurance coverage to renters for the loss of, or damage to, tangible personal property in storage or in transit during the rental period or any other coverage the IC may approve as appropriate; 9. Would require the licensee to provide brochures or other written materials to the prospective renter that https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml 9/8/2017 AB 2520 Assembly Bill - Bill Analysis AB 2520, Page 3 of ? summarizes the material terms and conditions of coverage offered, including the identity of the insurer, and to describe the process for filing a claim, including a toll-free telephone number to report a claim; 1@. Would require the licensee to post conspicuously and disclose to renters in writing, with a signed acknowledgement by the renter, that: a. The purchase of insurance from the self-service storage facility is not required to rent the space, but the licensee or its employees may advise the renter that the self storage agreement may contain provisions requiring the renter to provide insurance on his or her property in the storage unit; b. _ The insurance offered may duplicate coverage already provided by the renter's homeowners’ insurance policyor other source of coverage; c. The self-service storage facility and its employees are not qualified or authorized to evaluate the renter's existing insurance coverage; 11. Would define "self-service storage facility", "storage space", "renter", "rental agreement", and "self-service | storage agent" for purposes of this article; 12. Would permit the IC to adopt fee differentials for smaller self-service storage facilities. COMMENTS 1. Purpose of the bill . To create a limited agent license for self-service storage facilities to sell hazard insurance to renters of storage units. 2. _Background_. Many self-service storage facilities have been selling personal property insurance coverage to their tenants for many years, but have not been licensed by the DOI. According to the sponsor, the DOI has now taken the position that self-service storage facilities making such insurance available and https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml , 3/7 9/8/2017 of ? . AB 2520 AssemblyBill - Bill Analysis AB 2520, Page 4 collecting premiums for licensed agents and/or insurers should be licensed, and has issued cease and desist orders against several self-service storage facilities. This bill is the industry's response to the DOI position. The law regulating the sale of insurance by the rental car industry was enacted in 1999, largely in response to a class action lawsuit in Texas filed on behalf of all persons who have been offered insurance in connection with the rental of a vehicle. According to the sponsors, this bill is modeled on the law governing the sale of insurance by rental car companies and their agents, with a few modifications. _ Support. . According to The Bob Bader Company, self-sérvice storage facilities have been offering optional personal property insurance coverage to their tenants for more than 2@ years for two reasons: A large percentage of self-service storage tenants do not have personal property coverage, and coverage provided by the self-service storage facilities helps tenants recover financially when there is a loss; The courts have relieved self-service. storage facilities of liability for loss of, or damage to, the tenant's property when there is a loss, the tenant has been advised that it is his/her responsibility to insure the property, and optional coverage has been offered. Opposition . None received Department of Insurance . The DOI has stated that a limited agent license for self-service storage facilities should not have to meet all of the requirements currently imposed on the car rental industry. However, it raised concerns over what it considers certain omissions in the bill as currently drafted. In addition, the department would like some additional administrative safeguards included in the bill to allow proper staffing for the process of implementation and https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml 4/7 9/8/2017 of ? AB 2520 AssemblyBill - Bill Analysis AB 2520, Page 5 to set the license fee in statute, although it has not provided proposed language for these provisions. The amendments proposed by the department are: a) The licensee should be at least 18 years of age; b) Wording should be changed to require the training materials to be submitted with the application for the license; c) Require each self-service storage facility to maintain a list certifying that the employees offering insurance at that location have been trained; d) Add a provision for accepting late renewals, but charging a late penalty fee; e) Add a section that mirrors that in Insurance Code section 1758.81(c) requiring the licensee to pay costs associated with any enforcement action or investigation pursuant to this article; f) Provide for a two-tiered fee arrangement, with those vendors having eight employees or less paying a lesser fee. POSITIONS Support The Bob Bader Company (Sponsor) Public Storage, Inc. (Sponsor) Oppose None received Other Department of Insurance--Neutral if Amended COMMITTEE QUESTIONS There are several, generally minor, differences between the https://leginfo.legisiature.ca.gov/faces/billAnalysisClient.xhtml 5/7 9/8/2017 AB 2520 AssemblyBilt - Bill Analysis AB 2520, Page 6 of ? laws governing the sale of insurance by the rental car industry and this bill. Some are specific to the industry served, but others seem to have some relevance to both: 1. The renewal process for the rental car industry is more explicit, including a provision added in 2002 stating that, not less than 6@ days before the license will expire, the IC may mail the renewal notice to the latest address for the licensee. It is the responsibility of the licensee to file the renewal on time, and the IC may impose a late penalty of 50% in addition to the renewal fee. Should this bill provide for a late penalty to mirror that for the car rental industry? 2. The rental car industry law requires licensee to pay any costs associated with any enforcement action or investigation. Should the self-service storage industry also be required to pay these costs? 3. The rental car industry law requires the licensee and any employee acting as an agent to be at least 18 years old. Should there be an age requirement in this bill? 4, Should self-service storage employees have to be periodically retrained on the subject matter related to this law? 5. Should the license fee be set in statute rather than by regulation? Consultant: Erin Ryan (916) 445-6825 https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml 6/7 9/8/2017 https://leginfo.legistature.ca.gov/faces/billAnalysisClient.xhtml AB 2520 Assembly Bill - Bill Analysis 77 EXHIBIT B 8/20/2017 AB 2520 AssemblyBill - Bill Analysis [SENATE RULES COMMITTEE | AB 2520 [Office of Senate Floor Analyses | |102@ N Street, Suite 524 | |(916) 445-6614 Fax: (916) | {327-4478 | | | | | | THIRD READING Bill No: AB 2520 Author: Vargas (D) Amended: 7/22/04 in Senate Vote: 21 SENATE INSURANCE COMMITTEE : 8-1, 6/16/04 AYES: Speier, Morrow, Denham, Escutia, Figueroa, Ortiz, Scott, Soto NOES: Oller SENATE APPROPRIATIONS COMMITTEE : 10-0, 8/4/04 AYES: Alpert, Battin, Aanestad, Ashburn, Bowen, Burton, ' Escutia, Machado, Poochigian, Speier NO VOTE RECORDED: Johnson, Karnette, Murray ASSEMBLY FLOOR. : 73-6, 5/25/04 - See last page for vote SUBJECT : Self-service storage agents SOURCE: Public Storage, Inc. The Bob Bader Company DIGEST: This bill (1) requires self-service storage facilities and their franchisees that sell insurance in connection with self-service storage rental agreements to obtain a license from the State Insurance Commissioner, (2) requires such licensees to provide training to their employees, (3) allows the facility to collect the monthly storage fee and insurance premium in ome check, and (4) imposes other specified duties. CONTINUED http:/Aeginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml 16 8/20/2017 2 AB 2520 Assembly Bill - Bill Analysis AB_ 2520 Page ANALYSIS: Existing law: 1. Provides that, in general, a person shall not negotiate or sell contracts of insurance unless he or she has been licensed by the State Insurance Commissioner (IC) to act in that capacity, and makes it a crime to act in that capacity without a license. . Allows for the sale of limited lines of insurance by retail vendors of communications equipment and rental cars and their agents, and credit insurance agents, under specified conditions. “This bill: 1. Creates a new limited line of insurance category to - regulate the offering for sale of insurance by self-service storage facilities in California. Requires any self-service storage facility, or franchisee of that facility, that sells insurance in connection with, and incidental to, self-service rental agreements to be licensed by the IC. Requires that license to be renewed every two years. Requires the applicant for a license under this article pay a fee, to be determined by the State Department of Insurance (DOI) and sufficient to defray the actual costs of implementing this article,- upon application and renewal. Requires licensees to provide certain written information to the IC, including a certificate by the insurer that is named in the self-service storage agent license stating that the applicant is trustworthy and competent to act as its agent for the purpose of selling insurance specific to self-service storage agreements. Requires each self-service storage licensee to provide training and instruction to its employees regarding the types of insurance offered for sale to prospective http:/Meginfolegislature.ca.gov/faces/billAnalysisClient.xhtml 216 8/20/2017 16. 11. AB 2520 AssemblyBill - Bil! Analysis AB_ 2520 Page renters, ethical sales practices, and disclosures to renters required by this article, and requires all training materials, and any subsequent modifications, to be submitted to the DOI at least 30 days prior to use. . Provides that if the licensee or any of its employees violate any of these provisions, the IC may revoke or suspend its license or impose other fines and penalties. Provides that the self-service storage facility license to sell insurance is limited to hazard insurance coverage to renters for the loss of, or damage to, tangible personal property in storage or in transit during the rental period or any other coverage the IC may approve as appropriate. . Requires the licensee to provide brochures or other written materials to the prospective renter that summarizes the material terms and conditions of coverage offered, including the identity of the insurer, and to describe the process for filing a claim, including a toll-free telephone number to report a claim. Requires the licensee to post conspicuously and disclose to renters in writing, with a signed acknowledgement by the renter, that: A. The purchase of insurance from the self-service storage facility is not required to rent the space, but the licensee or its employees may advise the renter that the self-storage agreement may contain provisions requiring the renter to provide insurance on his/her property in the storage unit. B. The insurance offered may duplicate coverage already provided by the renter's homeowners' insurance policy or other source of coverage. C. The self-service storage facility and its employees are not qualified or authorized to evaluate the renter's existing insurance coverage. Defines "self-service storage storage space,” "renter," "rentalfacility, http://leginfo.legislature.ca.gov/faces/biltAnalysisClient.xhtml 3/6 8/20/2017 AB 2520 Assembly Bill - Bill Analysis AB 2520 Page 4 agreement,” and "self-service storage agent" for purposes of this article. 12. Permits the IC to adopt fee differentials for smaller self-service storage facilities. Purpose of the bill . To create a limited agent license for self-service storage facilities to sell hazard insurance to renters of storage units. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 6/16/04) (Per Senate Insurance Committee analysis) ‘ The Bob Bader Company (co-source) Public Storage, Inc. (co-source) ARGUMENTS IN SUPPORT : According to The Bob Bader Company, self-service storage facilities have been offering optional personal property insurance coverage to their tenants for more than 2@ years for two reasons: 1. A large percentage of self-service storage tenants do not have personal property coverage, and coverage provided by the self-service storage facilities helps tenants recover financially when there is a loss. 2. The courts have relieved self-service storage facilities of liability for loss of, or damage to, the tenant's property when there is a loss, the tenant has been advised that it is his/her responsibility to insure the property, and optional coverage has been offered. ASSEMBLY FLOOR : AYES: Aghazarian, Bates, Benoit, Berg, Bermudez, Bogh, Calderon, Campbell, Canciamilla, Chan, Chavez, Chu, Cogdill, Cohn, Corbett, Correa, Cox, Daucher, Diaz, Dutra, Dutton, Dymally, Firebaugh, Frommer, Garcia, Goldberg, Hancock, Harman, Jerome Horton, Shirley Horton, Jackson, Keene, Kehoe, Koretz, La Malfa, Laird, Leno, http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml ‘ 4/6 8/20/2017 AB 2520 AssemblyBill - Bill Analysis AB_ 2529 Page Levine, Lieber, Liu, Longville, Lowenthal, Maddox, Maldonado, Matthews, Maze, McCarthy, Montanez, Mullin, Nakanishi, Nakano, Nation, Negrete McLeod, Oropeza, Parra, Pavley, Plescia, Reyes, Richman, Ridley-Thomas, Runner, Salinas, Samuelian, Simitian, Spitzer, Steinberg, Vargas, Wesson, Wiggins, Wolk, Wyland, Yee, Nunez NOES: Haynes, Houston, La Suer, Leslie, Mountjoy, Pacheco NO VOTE RECORDED: Strickland DLW:mel 8/9/04 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE wR END RK http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml 5/6 DECLARATION OF SERVICE BY OVERNIGHT COURIER Case Name: Samuel Heckartv. A-1 Self Storage, Inc.etal. No.: §232322 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe | California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter; my business addressis: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On September 11, 2017, I served the attached REQUEST FOR JUDICIAL NOTICE IN SUPPORTOF BRIEF OF THE INSURANCE COMMISSIONER OF THESTATE OF CALIFORNIA, INVITED AMICUS CURIAE; SUPPORTING DECLARATION OF MOLLY K. MOSLEY AND EXHIBITSA-Bbyplacinga true copy thereof enclosedin a sealed envelope with the GOLDEN STATE OVERNIGHT,addressed as follows: David J. Harris Trent Kashima William Restis Finkelstein and Krinsk LLP 550 West "C" Street, Suite 1760 San Diego, CA 92101 Attorneysfor Samuel Heckart PlaintiffandAppellant John Tinley Brooks Sheppard Mullin Richter and Hampton LLP 501 West Broadway, 19th Floor San Diego, CA 92101 AttorneyforA-1 SelfStorage, Inc. Defendant and Responden John R. Clifford David Aveni Wilson Elser Moskowitz Edelman and Dicker LLP 655 West Broadway, Suite 900 San Diego, CA 92101 AttorneyforDeans & Homer Defendant and Respondent Brad N. Baker Baker Burton and Lundy PC 515 Pier Avenue Hermosa Beach, CA 90254 Attorneyfor Baker Burton andLundy PC Amicus curiae Raymond Zakari Zakari Law 301 East Colorado Boulevard, Suite 407 Pasadena, CA 91101 Attorneyfor Zakari Law _ Amicus curiae Dale Washington Attorney at Law 5942 Edinger Avenue 113/1325 Huntington Beach, CA 92649 Attorney for Dale E. Washington, Esq. Amicus curiae California Court of Appeal Fourth Appellate District, Division One 750 B Street, Suite 300 San Diego, CA 92101 Charles A. Bird Dentons US LLP 4655 Executive Drive, Suite 700 San Diego, CA 92121 Attorney for California SelfStorage Association, Amicus curiae San Diego County Superior Court Central - Hall of Justice 330 West Broadway Department 61 San Diego, CA 92101 I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct andthat this declaration was executed on September 11, 2017, at Sacramento, California. Nickell T. Mosely Declarant $A2017901432 33041074.docx33041074.DOCX /Signature ‘
