Free Motion for Leave to Appear - District Court of California - California

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 1 of 12

1 Martin E. Rosen (108998), [email protected] Jenny H. Wang (191643), [email protected] 2 BARGER & WOLEN LLP 19800 MacArthur Boulevard, 8th Floor 3 Irvine, California 92612 Telephone: (949) 757-2800 4 Facsimile: (949) 752-6313 5 Attorneys for Plaintiff-in-Interpleader Reassure America Life Insurance Company 6 7 8 9 10 11 REASSURE AMERICA LIFE INSURANCE COMPANY, 12 Plaintiff-in-Interpleader, 13 vs. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
BARGER & WOLEN LLP
19800 MACARTHUR BLVD. EIGHTH FLOOR IRVINE, CA 92612 (949) 757-2800

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) ) ) ) ) ) ) SALEH M. ZAHRAN, SAL AKEL ) SILVA, MARIA A. SILVA, BEDA ) SANCHEZ, LAYALI M. AKEL, ) TAGHRID SUAD M. AKEL and ) MOHAMMAD M. AKEL, and DOES 1 ) through 10, Inclusive ) ) Claimants-in-Interpleader. ) )

CASE NO.: 08 CV 0119 JLS WMC PLAINTIFF-IN-INTERPLEADER'S REQUEST TO BE EXCUSED FROM PERSONALLY APPEARING AT EARLY NEUTRAL EVALUATION CONFERENCE DATE: April 7, 2008 TIME: 2:00 p.m. CTRM: C. Hon. William McCurine, Jr.

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 2 of 12

1 2 3

1.

INTRODUCTION

Plaintiff-in-Interpleader Reassure America Life Insurance Company

4 ("Reassure") hereby respectfully requests that a company representative, who is 5 located in the State of Michigan, be excused from personally attending the Early 6 Neutral Evaluation Conference ("ENEC"), currently scheduled for April 7, 2008. 7 Reassure's counsel of record will personally attend the ENEC, but Reassure requests 8 permission for its company representative to participate in the ENEC, if necessary, by 9 telephone. 10 11 As discussed in more detail below, there is good cause to excuse Reassure's

12 personal attendance at the ENEC because Reassure is merely a disinterested 13 stakeholder that has deposited the insurance policy proceeds at issue in the case with 14 the Clerk of the Court. Additionally, if Reassure incurs costs for a company 15 representative to travel from Michigan to California to appear at the ENEC, that will 16 erode the policy benefits to which the proper beneficiary or beneficiaries would 17 otherwise be entitled, as Reassure intends to request reimbursement from the 18 interpled funds for the reasonable fees and costs incurred to bring and maintain this 19 interpleader action. Counsel for all the Claimants agree that Reassure's personal 20 appearance at the ENEC is unnecessary. 21 22 23 24 This lawsuit arises from a dispute between several individuals who have made 2. STATEMENT OF RELEVANT FACTS1

25 conflicting claims to the proceeds of a flexible premium life insurance policy, number 26 B12962 (the "Policy"), issued on July 18, 1996 by The Midland Life Insurance 27
1 All of the following facts are alleged in Reassure's Complaint-in-Interpleader on 28 filed with the Court.
BARGER & WOLEN LLP
19800 MACARTHUR BLVD. EIGHTH FLOOR IRVINE, CA 92612 (949) 757-2800

1

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 3 of 12

1 Company, now known as Reassure, to Decedent Zeinb M. Akel ("Decedent") in the 2 face amount of $250,000.00. 3 4 On May 16, 1996, at the time the Decedent applied for the Policy, she

5 designated her son, Saleh Zahran, as the 100% primary beneficiary of the Policy. On 6 June 15, 2004, Simon Mikhael, Esq. ("Mikhael"), as a representative of the Decedent, 7 submitted to Reassure a written request signed by the Decedent on June 7, 2004 to 8 change the Policy beneficiary to the following individuals (who are the children or in9 laws of the Decedent) as equal, primary beneficiaries: Saleh M. Zahran, Sal Akel 10 Silva, Maria A. Silva, Beda Sanchez, Layali M. Akel, Taghrid Suad M. Akel and 11 Mohammad M. Akel (hereinafter, collectively, the "Claimants"). As a result, 12 Reassure made the change in Policy beneficiaries effective June 7, 2004. 13 14 On or about August 5, 2005, Saleh Zahran submitted to Reassure a Request for

15 Change of Ownership of the Policy, signed by the Decedent, changing the primary 16 owner of the Policy from the Decedent to himself. Shortly thereafter, in or around 17 September 2005, Saleh Zahran also submitted a request for change of beneficiary of 18 the Policy, designating himself as the 100% primary beneficiary and Maysa Zahran 19 as the 100% contingent beneficiary. Pursuant to the Request of Change of Ownership 20 as described above, effective August 29, 2005, Reassure transferred ownership of the 21 Policy to Saleh Zahran. 22 23 Pursuant to the request for change of beneficiary as described above, effective

24 September 2005, Reassure changed the primary beneficiary of the Policy to Saleh 25 Zahran and the contingent beneficiary of the Policy to Maysa Zahran. 26 27 Decedent died on December 18, 2006. At the time of Decedent's death, the

28 face value of the Policy was $250,000. Since the Decedent's death, each of the
BARGER & WOLEN LLP
19800 MACARTHUR BLVD. EIGHTH FLOOR IRVINE, CA 92612 (949) 757-2800

2

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 4 of 12

1 Claimants named in this action has made conflicting claims to the Policy proceeds, 2 each asserting that they are the Policy's beneficiaries of record. Specifically, Sal 3 Akel Silva, Maria A. Silva, Beda Sanchez, Layali M. Akel, Taghrid Suad M. Akel 4 and Mohammad M. Akel each assert a one-seventh right to the Policy proceeds, and 5 Zahran asserts a 100% right to the same. 6 7 On September 7, 2007, Mikhael, on behalf of his clients, Sal Akel Silva, Maria

8 A. Silva, Beda Sanchez, Layali M. Akel, Taghrid Suad M. Akel and Mohammad M. 9 Akel, wrote to Reassure asserting that Saleh Zahran fraudulently changed the Policy 10 beneficiaries to benefit himself and that his clients were in the process of 11 investigating the matter. Mikhael asserted that Saleh Zahran was under federal 12 indictment for multiple fraud crimes, including tax evasion, Social Security fraud, 13 Medi-Cal fraud and identity theft. He also asserted that Saleh Zahran's wife, Maysa 14 Zahran, was also indicted and arraigned in federal court in San Diego. Mikhael 15 provided Reassure with what he represented was a news release purporting to detail 16 the criminal accusations against Saleh Zahran. Mikhael asked Reassure not to make 17 any payment of the Policy proceeds to Saleh Zahran. 18 19 On September 17, 2007, Reassure wrote to Mikhael and Saleh Zahran advising

20 each of them that if the Claimants could not reach an agreement within 21 days 21 regarding the distribution of the Policy proceeds, then Reassure would file an 22 interpleader action with respect to the same. In October 2007, Mikhael and Saleh 23 Zahran each informed Reassure that the Claimants were unable to resolve their 24 competing claims, and they specifically asked Reassure to initiate the instant 25 interpleader action. 26 27 Reassure does not dispute that the entirety of the Policy proceeds should be

28 paid, but Reassure is uncertain which of the Claimants is or are entitled to any of the
BARGER & WOLEN LLP
19800 MACARTHUR BLVD. EIGHTH FLOOR IRVINE, CA 92612 (949) 757-2800

3

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 5 of 12

1 proceeds. Accordingly, Reassure commenced the instant interpleader action seeking 2 a declaration of its rights and obligations under the Policy with respect to each of the 3 Claimants' rights, if any, to the Policy proceeds. On February 21, 2008, Reassure 4 deposited the entirely of the Policy proceeds plus applicable interest (hereinafter, the 5 "Interpled Funds") with the Clerk of the Court for the Southern District of California. 6 Please see the conformed Notice of Deposit and accompanying receipt, attached 7 hereto as Exhibit "1." 8 9 10 11 12 Reassure was and is merely a disinterested stakeholder of life insurance policy 3. THERE IS GOOD CAUSE TO EXCUSE A REPRESENTATIVE OF REASSURE FROM PERSONALLY ATTENDING THE ENEC

13 proceeds that were deposited with the Court upon the filing of this interpleader 14 action. See Exhibit "1" hereto. The reason Reassure commenced this action is that it 15 is unable to determine the validity of the conflicting demands made by the Claimants 16 and cannot determine to whom the Interpled Funds belongs. Accordingly, Reassure's 17 participation in the ENEC will not aid in the resolution of the dispute among the 18 Claimants. 19 20 Indeed, if Reassure incurs the cost to have a representative of the company

21 travel to California from Michigan to attend the ENEC, that will erode the amount of 22 Interpled Funds to which the proper beneficiary or beneficiaries of the Policy would 23 otherwise be entitled. Reassure does intend to seek reimbursement from the Interpled 24 Funds of the reasonable fees and costs incurred to bring and maintain this 25 interpleader action. See Abex Corp. v. Ski's Enterprises, Inc., 748 F.2d 513, 516 (9th 26 Cir. 1984) (courts have discretion to award a disinterested party stakeholder 27 attorneys' fees in an interpleader action). 28
BARGER & WOLEN LLP
19800 MACARTHUR BLVD. EIGHTH FLOOR IRVINE, CA 92612 (949) 757-2800

4

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 6 of 12

1

Counsel for each of the Claimants has advised counsel for Reassure that they

2 do not object to Reassure's company representative participating in the ENEC by 3 telephone. 4 5 6 7 For the reasons stated above, Reassure respectfully requests an Order 4. CONCLUSION

8 permitting its company representative to be available by telephone during the ENEC. 9 10 11 DATED: March 21, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
BARGER & WOLEN LLP
19800 MACARTHUR BLVD. EIGHTH FLOOR IRVINE, CA 92612 (949) 757-2800

BARGER & WOLEN LLP

By: /s/ Jenny H. Wang MARTIN E. ROSEN JENNY H. WANG Attorneys for Attorneys for Plaintiff-in-Interpleader Reassure America Life Insurance Company

5

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 7 of 12

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 8 of 12

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 9 of 12

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 10 of 12

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 11 of 12

Case 3:08-cv-00119-JLS-WMC

Document 17

Filed 03/21/2008

Page 12 of 12