Michael P. Mellema
708 Plymouth Way
Burlingame, CA 94010
650-343-3307, [email protected]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
PEOPLE OF THE STATE ) Case No. 16CLJ01063
OF CALIFORNIA, ex. Rel. )
MICHAEL P. MELLEMA )
Plaintiffs, )
PLAINTIFF MICHAEL P.
MELLEMA ) TRIAL BRIEF
-VS-. )
) Trial Date: June 11, 2018
MICHELE D. FRIEDMAN, ). Continued: June 22, 2018
TODD M. FRIEDMAN ) Time: 10:00 a.m
Defendants. ) Location: Dept 23, Room 8A
I. INTRODUCTION
This case is brought to Court as a false claim under the Insurance Code, Insurance Fraud Prevention Act. Section 1871.7 (b) states that: “Every person who violates any provision of this section or Section 549, 550, or 551 of the Penal Code shall be subject, in addition to any other penalties that may be prescribed by law, to a civil penalty of not less than five thousand dollars ($5,000) nor more than ten thousand dollars ($10,000), plus an assessment of not more than three times the amount of each claim for compensation. Any individual can file a complaint that includes substantially all material evidence and information in Plaintiff’s possession. While California does not allow private prosecutions, it does allow the evidence of a felony to be entered in a civil case and that case can be referred to the District Attorney to file charges
II. DISCOVERY
Discovery was accomplished by three methods. The Department of Motor Vehicles was served with a Public Records Act request and provided three documents in August 2015. Subpoena Duces Tecums were served on two auto body shops and Farmer’s Insurance Exchange, obtained by Plaintiff in March and April, 2017. Written depositions were obtained from two auto body shops in February 2018.
Prior to the first scheduled Case Management Conference, Defense Attorney, Ryan Greenspan was asked to identify the person who orchestrated a change of repair shops and a $403 increase in repair costs. Despite a C.R.C. 3.724 requirement to meet and confer to resolve any discovery issues, Greenspan refused to answer.
In February 2018, Greenspan was served with a Judicial Council form DISC-015, Request for Statement of Witnesses and Evidence. DISC-015 says that no witness or evidence will be permitted that is not submitted in response to this form. Greenspan never responded.
III. SUMMARY OF FACTS
On May 31, 2015, two cars were both backing up at the same time and made bumper to bumper contact in the middle of the street. Defendant Michele Friedman was driving a 2014 Audi Q5 and Plaintiff, Michael Mellema, was driving a 1983 Datsun 280ZX A brief inspection showed neither car had any damage from the contact but Defendant had white paint on an unbroken taillight. After only a few minutes, defendant left the scene providing only her first name and no contact information in violation of Vehicle Code 20002, Misdemeanor Hit and Run. When Defendant did not return, Plaintiff assumed she was embarrassed and wanted to forget the incident.
Five days later, defendant’s husband left a message on Plaintiff’s phone. He claimed there was a dent in a fender although Plaintiff remembered there was white material on the right rear lower tail light. Husband said he had estimates and suggested Plaintiff might want to make a cash settlement to avoid dealing with insurers. Under oath, defendant said they only had two estimates, the first one obtained 10 days after the phone call. Plaintiff considered the call to be a scam and did not respond.
The Defendant filed a claim for damages with USAA Casualty Insurance who filed against plaintiff’s insurance, Farmer’s Insurance Exchange. Defendant’s own photographs show that white paint on an unbroken tail light could not come from Plaintiff’s rear bumper. Filing a false claim for an insurance payment violates Penal Code 550, Insurance Fraud.
In Defense Council’s Trial Brief, he claimed that USAA told Ms. Friedman to file an SR-1 accident report before she had any estimate that exceeded $750. At that time, it would be mandatory to obtain an estimate that exceeded $750 or the Department of Motor Vehicles would file charges for perjury.
The same day Defendant filed the SR-1, USAA mailed a hostile demand letter to Plaintiff demanding payment for unspecified damages. Their “investigation” was negligent because they failed to validate Defendant’s claims. The USAA representative has never spoken to Plaintiff. USAA added several threats to cause personal harm if Plaintiff did not cooperate. The letter was viewed as little more than extortion. A response was sent on June 16, 2015 stating that USAA had been mislead and that there was a witness.
On June 15, 2015, Defendant obtained an estimate from Chilton’s Auto Body Shop for $963.17. Only one item was in all capital letters,” POLISH PAINT TRANSFER”. The estimate did not replace any broken tail light. Defendant forwarded the estimate to USAA who, in turn, forwarded it to Farmer Insurance Exchange. On June 19,2015, USAA wrote a check to Ms. Friedman for the full amount of Chilton’s estimate. That same day, Farmers sent Plaintiff a notice they had opened a claim for damages although one was not requested by Plaintiff.
On June 23, 2018, Defendant delivered their car to Multi Craft Auto Body Shop who immediately created an invoice for $1,366.17. When interviewed by Plaintiff, Multi Craft said they were told by USAA to issue the invoice without preparing their own estimate. Between June 19 and June 23, the only thing that happened was that Christopher Baca at USAA received Plaintiff’s response to his demand letter.
On June 24, 2018, an estimate that matched the invoice was created by revising Chilton’s estimate to add $403 in fabricated repairs costs. The estimate was prepared by Brian Downey, an adjuster licensed only in Arizona and residing in Anthem, Arizona, approximately 760 miles from the damaged vehicle. The attorney for USAA said that Downey was an employee of USAA and could legally make adjustments. His employment was not verified. No local body shops, including Multi Craft, or local adjusters were asked for a second estimate.
On June 25, 2018, Todd Friedman picked up the vehicle and paid with the same $963.17 they had just received from USAA.
In her statement to Farmer’s, Defendant stated she turned left into a neighbor’s driveway to turn around but left out a key detail. She had passed completely beyond Plaintiff’s house and driveway. If she were turning around, she would have backed in the opposite direction, thereby avoiding any contact. The only way she could see Plaintiff’s car in her rearview camera was to back up in the wrong direction making her the one responsible for the collision.
When the DMV asked for proof of damages, Defendant’s husband could have submitted Chilton’s estimate at $963. Instead, he submitted the invoice with the extra $403 added to an already false claim. Farmers said that anything under $1,000 did not lead to increased premiums. Todd Friedman was not the driver, passenger or witness and his sworn statement was hearsay. He had no standing to file a sworn statement accusing Plaintiff.
Because of the DMV filings, Plaintiff was threatened with a one-year license suspension which would have caused a severe personal and financial hardship. Although it was overturned by an appeal to the DMV Director’s Office the chargeable accident remained on Plaintiff’s driving record and lead to a substantial increase in premiums. Plaintiff seeks to have the accident removed. Both DMV statements were signed under penalty of Perjury, P.C. 118.
IV ACTUAL AND POTENTIAL CODE VIOLATIONS
Michele Friedman
CVC 20002 Misdemeanor Hit and Run – leaving the scene of an accident without providing. required contact information.
CPC 550 Insurance Fraud – filing a false claim for insurance over preexisting damages.
CPC 118, Perjury – filing a false statement with the Dept of Motor Vehicles.
CPC 182 Conspiracy to Commit Insurance Fraud
Todd Friedman
CPC 118, Perjury – filing a false statement with the Dept of Motor Vehicles based on hearsay.
CPC 182 Conspiracy to Commit Insurance Fraud
Multi Craft Auto Body Shop
CCR 2695.85 Automotive Repair Act – failure to prepare and provide a written estimate before making repairs.
USAA Casualty Insurance, Christopher Baca
CIC 758.5a – prohibition against telling a claimant where they must get repairs.
CIC 1668 License Qualifications – If Downey is an employee, USAA allowed Downey to prepare a false repair estimate
CPC 182 Conspiracy to Commit Insurance Fraud
Brian Downey:
If Downey is not an employee, then:
CIC 14020 – Adjuster must be licensed in California
CIC 14045 – Adjuster shall not advertise or conduct business outside his stated locale
CIC 14065 – license may be suspended for dishonest or fraudulent activities
CPC 182 Conspiracy to Commit Insurance Fraud, – at the direction of USAA, fabricated an undocumented cost increase.
IV DEFENSE COUNCIL CONDUCT
Throughout this litigation, Defense Council, Ryan Greenspan, has refused to respond to any and all requests for discovery. CRC 3.724 requires parties to meet and confer to resolve any issues of discovery. In Council’s Settlement Statement and Trial Brief, he has included multiple false and misleading statements. He continues to assert that Plaintiff’s complaint is pure speculation , baseless allegations, unsupported and utterly frivolous. This ignores the Law and Motion ruling of August 22, 2017 which states “ Plaintiff has alleged sufficient facts to constitute a cause of action for insurance fraud against these demurring defendants”.
While Plaintiff acting as his own attorney was unaware of the pretrial requirements of Appendix 2, Long Cause Trial Rules Check Sheet, Defense Council failed to comply with any of it’s requirements leaving Plaintiff to be ambushed at trial.
In a letter dated May 11, 2018, Council claimed he was not obligated to provide any witness statements and evidence to be presented at trial. He did say that he intended to call only the two defendants. Plaintiff finds only moments before trial that the defendant’s daughter was added to the witness list. This is not acceptable as she is protective of her Mother and will have been coached in her responses making her a hostile witness. The Trial Brief, Witness List, and Exhibit List was only given to Plaintiff moments before the start of trial. There was no attempt to meet and confer. Defense Council’s actions are reprehensible and should not be tolerated.
Date:June 19, 2018_ Signed:_________________
Michael P. Mellema