SEAN RASHTI
5150 YARMOUTH AVE APT. 210
ENCINO, CA 91315
CELL TELEPHONE: 818-448-6500
FAX: 818-705-2724
PLAINTIFF IN PROPER
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR COUNTY OF LOS ANGELES – CENTRAL DISTRICT
SEAN RASHTI,
Plaintiff
vs.
TOBY WANK, et al,
Defendant
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Case No.: No. 19STCV42312
Judge: Honorable Audra Mori
Department: 31
DEMAND FOR A DECLARATION OF
POLICY LIMIT(S)
Complaint filed: Nov. 26. 2019
Trial Date: May 20.2022
PROPOUNDING PARTY: Plaintiff SEAN RASHTI
RESPONDING PARTY: Defendant TOBY WANK, et.al,
COMES NOW plaintiff SEAN RASHTI, proceeding pro se, and demands for the
Defendant’s Declaration of Available Policies and the limits thereof. In support of the
aforesaid request, Plaintiff states as follows:
FACTUAL BACKGROUND
On or about November 26, 2019, Plaintiff filed a Complaint against the Defendant.
On or about January 21, 2020, the Defendant filed a Response to Plaintiff’s Complaint,
denying each and every allegation in Plaintiff’s Complaint. On the same date, the Defendant
sent Plaintiff a Demand for Exchange of Expert Witness Information. In the said Demand, the
Defendant requested that both parties send to the other party a list of the expert witnesses, and
any document and/or report made by the said expert witnesses.
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DEMAND FOR A DECLARATION OF POLICY LIMIT(S)
On or about September 17, 2020, Plaintiff, through Plaintiff’s former Attorney, filed a
“Request for Prior Pleadings” to the Defendant.
On or about October 26, 2020, the Plaintiff responded to Defendant’s Form
Interrogatories Set One. In the said Response, Plaintiff duly responded with specificity to each
and every of Defendant’s interrogatories.
On February 19, 2021, the Plaintiff sent the Defendant a Request for Production of
Documents Set Two. Notably, the Plaintiff requested the Defendant to produce all documents
and other tangible things that support Defendant’s denial or special or affirmative defenses.
On or about March 23, 2021, the Defendant sent the Plaintiff Objections to Plaintiff’s
Request for Production of Documents. In the objection, the Defendant alleged that the
Plaintiff’s request seeks to obtain privileged information and invade the attorney-client and
work product privileges. Defendant also alleged that the Plaintiff’s request was premature and
that Defendant’s affirmative defenses were made as a matter of right.
On April 29, 2021, the Plaintiff’s former Attorney sent a Meet and Confer letter to the
Defendant. However, Defendant has since failed to meaningfully meet and confer.
Plaintiff then filed a Motion to Compel the Defendant to respond to Plaintiff’s Request
for Production of Documents Set Two.
On or about January 2022, Dustin Lee, Defendant’s attorney, filed a Stipulation &
order to proceed against estate and limit Recovery to insurance policy Limits. In the said
document, the Defendant alleged that Defendant Toby Wank was insured under an automobile
liability policy with State Farm Mutual Automobile Insurance Company with a per person limit
of $250,000. The document further stated that the policy provided coverage for the subject
claim in the event Toby Wank was found wholly or partially responsible for the incident.
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DEMAND FOR A DECLARATION OF POLICY LIMIT(S)
Interestingly, the Defendants notified the Plaintiff that Defendant Toby Wank had died
on or about January 9, 2021, about a year later when the proposed Stipulation was being sent to
Plaintiff.
In that regard, the proposed stipulation provided that the matter be held against the
Defendant’s estate pursuant to Probate Code section 550, et seq, and that the recovery of any
claim under the action be limited to the said policy limit of $250,000.
However, the total damages suffered by Plaintiff surpass the said policy limit. The
Plaintiff must undergo surgery scheduled in May 2022, which Cost $170,000. Consequential to
the injury, Plaintiff can only sleep for between 2 to 4 hours every night. His ear rings all day
from cervical instability; and he has neck, shoulder and other roaming pains. Notably, the
uncorrected space changes in Plaintiff’s Cervical vertebrae from the tendon tear from the
dorsal spinous process of T1, which allows Cervical Vertebrae 1-7 to fall forward into the
spinal canal. The cervical instability cannot be relieved without an advanced neuro/orthopedic
surgery. Notably, as a result of the cervical instability, Plaintiff has current chronic problems
including:
i. Roaming pains without warning;
ii. Severe visual blurriness for 2 years now;
iii. Tinnitis for 3 years now;
iv. Dizziness,
v. Vertigo,
vi. Balance difficulty (having to take a step or fall to the right side);
vii. Swallowing difficulties (unable to swallow food or pills – associated to severe
pain on swallowing, peristalsis disturbance and immotile esophagus);
viii. Consistent paresthesia of upper extremity causing dropping of objects,
and sleep disturbances;
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DEMAND FOR A DECLARATION OF POLICY LIMIT(S)
ix. Feeling of sudden loss of consciousness;
x. Strange outer body experiences;
xi. Severe anxiety attacks; and
xii. Cognitive impairments.
The Plaintiff had also spent $80,000 in incidental medical expenses, partially out of
Plaintiff’s own pocket. It is also worth noting that the Insurance Neurologist is aware of the
Plaintiff’s injuries. Plaintiff’s injuries have also borne a heavy toll on the patenting and
manufacturing of Plaintiff’s dental products.
On or about February 1, 2022, the Defendant’s attorney filed a Motion to Dismiss
Plaintiff’s Complaint. The Defendant’s attorney avers that Plaintiff has not exhausted two
options. First Defendant’s attorney alleges that Plaintiff has failed to continue the action
against the Defendant’s personal representative. Defendant argues that Plaintiff’s Complaint
should reflect that the Plaintiff is suing the Estate of the Defendant. Next, Defendant’s attorney
alleged that Plaintiff failed to continue the action pursuant to Probate Court section 550, which
limits recovery to available insurance proceeds. Accordingly, Defendant’s attorney maintains
that Plaintiff includes the Personal Representative of Defendant’s Estate, and files the claim in
compliance with section 9390. Defendant’s attorney also alleges that Plaintiff’s recovery
should be limited for alleged failure to effect the said changes on Plaintiff’s Complaint.
ARGUMENTS
i. The insurer should disclose policy limits
Under California law, an insurance company has a duty “to make reasonable efforts” to
settle lawsuits against its insured. PPG Industries, Inc. v. TransAmerica Ins. Co.(1999) 20
Cal.4th 310, 312. The duty to settle extends beyond the coverage terms of the policy. The
California Supreme Court has held in that regard that the insurance company has a duty “to
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DEMAND FOR A DECLARATION OF POLICY LIMIT(S)
settle in an appropriate case although the express terms of the policy do not impose such a
duty.” Comunale v. Traders & General Insurance Co. (1958) 50 Cal.2d 645. It is not
reasonable or good faith conduct for an insurance company to refuse to settle based on a “no
coverage position.” Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 531.
It is trite law that an insurer’s refusal to disclose policy limits in advance of litigation
may be an evidence of bad faith. Boicourt v. Amex Assurance Company, 78 Cal. App. 4th 1380
(2000). In the words of the court, “a liability insurer ‘”is playing with fire” when it refuses to
disclose policy limits. Id. Further, the insurer can be sanctioned for failure to provide policy
limits. According to Aguilar v. Gostischef, 220 Cal.App.4th 475, 2013 Cal. App. LEXIS 816,
2013 WL 5592976 (Oct. 11, 2013), where an injured party rationally believes an insurer may
be liable for excess judgment, and the insurer refuses to provide this third-party with the
amount of policy limits when requested prior to litigation, a section 998 offer above policy
limits may open up the policy to an excess judgment.
In light of the foregoing, Plaintiff makes this demand for the policy limits of Defendant
Toby Wank. Plaintiff maintains that the claims alleged in the Complaint are covered in the
policy. Next, the claims made are fair and reasonable. The Insurer is aware of the harm and/or
injury suffered by the Plaintiff. Notably, the insurer has had access to Plaintiff’s medical
records, accident report, and bills before filed in court. Accordingly, Plaintiff’s case has a high
likelihood of success, and award of damages in excess of the alleged policy limits.
ii. Granting Defendant’s Motion to Dismiss would amount to an abuse of
discretion
The trial court’s exercise of power under Code of Civil Procedure section 128,
subdivision(a)(8), is reviewed for abuse of discretion. See In re Joshua G. (2005) 129
Cal.App.4th 189, 199; Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035.) The
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DEMAND FOR A DECLARATION OF POLICY LIMIT(S)
exercise of a trial court’s discretion should be disturbed if there has been a miscarriage of
justice. Denham v. Superior Court (1970) 2 Cal.3d 557, 566.
In the instant action, Plaintiff avers that granting Defendant’s Motion would amount to
an abuse of the Court’s discretion. Notably, Plaintiff is still in the process of demanding a full
declaration of policies from the insurer. And it was after the Plaintiff obtained the said
declaration that Plaintiff would proceed to amend the Complaint accordingly. Therefore,
Plaintiff avers that the Defendant’s Motion is premature. It is filed too early before Plaintiff has
the opportunity to obtain full information and knowledge on the Policy limits. Besides, the
Defendant’s attorney approaches this Court with unclean hands. The Plaintiff was only
informed of the Defendant’s death about a year after her demise. Plaintiff avers that this
conduct is malicious and/or unjust. Plaintiff therefore requests this Court to dismiss
Defendant’s Motion to Dismiss.
CONCLUSION
WHEREFORE, Plaintiff makes the following demands:
i. The Insurer makes a sworn declaration of ALL applicable policies relevant to
the subject matter herein;
ii. A declaration of all available policies (e.g. Umbrella Policy, Excess Policy);
iii. The policy limit(s) that Defendant Toby Wank was subjected to;
iv. The Court issues an early monetary judgment in full, and in excess of the
alleged policy limit, in consideration of Plaintiff’s far-reaching injuries and/or
expenses;
v. The Court denies Defendant’s Motion to Dismiss;
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DEMAND FOR A DECLARATION OF POLICY LIMIT(S)
vi. The Court continues any pending date until the Plaintiff gets the declaration of
all policies requested herein, after which Plaintiff will amend the Complaint
accordingly;
vii. Any other relief this Court deems just and proper in the circumstances.
Respectfully submitted,
DATED: MARCH 6, 2022
Respectfully submitted,
SEAN RASHTI
PROPER
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