Attorney or Party Name, Address, Telephone & FAX Numbers, and California State Bar Number FOR COURT

COURT USE ONLY

Jeff D. Kahane (SBN 223329)
Duane Morris LLP
865 S. Figueroa Street, Suite 3100
Los Angeles, CA 90017-5450
Telephone: (213) 689-7400
Facsimile: (213) 689-7401
Email: JKahane@duanemorris.com
o Individual appearing without counsel
I8J Attorney for: ACE American Insurance Company, et al.
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re:
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
CASE NO.: 8:10-bk-16743-TA
Debtor(s).
DATE: November 29,2011
In re:
TIME: 10:30 a.m.
BioLabs, Inc.
CTRM: 5B
Debtor(s). FLOOR: 5
th
Floor
NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY
UNDER 11 U.S.C. 362 (with supporting declarations)
(MOVANT: ACE American Insurance Company, et al.)
(Personal Property)
1. NOTICE IS HEREBY GIVEN to the Debtor(s) and Trustee (if any)("Responding Parties"), their attorneys (if any), and other interested
parties that on the above date and time and in the indicated courtroom, Movant in the above-captioned matter will move this Court for
an Order granting relief from the automatic stay as to Debtor(s) and Debtor's(s') bankruptcy estate on the grounds set forth in the
attached Motion.
2. Hearing Location: o 255 East Temple Street, Los Angeles
021041 Burbank Boulevard, Woodland Hills
o 3420 Twelfth Street, Riverside
I8J 411 West Fourth Street, Santa Ana
01415 State Street, Santa Barbara
3. a. I8J This Motion is being heard on REGULAR NOTICE pursuant to Local Bankruptcy Rule 9013-1. If you wish to oppose this
Motion, you must file a written response to this Motion with the Bankruptcy Court and serve a copy of it upon the Movant's
attorney (or upon Movant, if the Motion was filed by an unrepresented individual) at the address set forth above no less than
14 days before the above hearing and appear at the hearing of this Motion.
b. 0 This Motion is being heard on SHORTENED TIME. If you wish to oppose this Motion, you must appear at the hearing. Any
written response or evidence must be filed and served:
o at the hearing 0 at least __ court days before the hearing.
(1) 0 A Motion for Order Shortening Time was not required (according to the calendaring procedures of the assigned judge).
(2) 0 A Motion for Order Shortening Time was filed per Local Bankruptcy Rule 9075-1(b) and was granted by the Court.
(3) 0 A Motion for Order Shortening Time has been filed and remains pending. Once the Court has ruled on that Motion, you
will be served with another notice or an order that will specify the date, time and place of the hearing on the attached
Motion and the deadline for filing and serving a written opposition to the Motion.
4. You may contact the Bankruptcy Clerk's Office to obtain a copy of an approved court form for use in preparing your response (OptionaJ
Court Form F 4001-1M.RES), or you may prepare your response using the format required by Local Bankruptcy Rule 9004-1 and the
Court Manual
(Continued on next page)
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1 M.PP
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Main Document Page 1 of 9
Motion for Relief from Stay (Personal Property) - Page 2 of 9
F 4001-1 M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
Debtor(s). CASE NO.: 8:10-bk-16743-TA
5. If you fail to file a written response to the Motion or fail to appear at the hearing, the Court may treat such failure as a waiver of your
right to oppose the Motion and may grant the requested relief.
Dated: October 31,2011
DUANE MORRIS LLP
Print Law Firm Name (if applicable)
Jeff D. Kahane /s/ Jeff D. Kahane
Print Name of Individual Movant or Attorney for Movant Signature of Individual Movant or Attorney for Movant
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1 M.PP
Case 8:10-bk-16743-TA Doc 607 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Main Document Page 2 of 9
Motion for Relief from Stay (Personal Property) - Page 3 of 9
F 4001-1 M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
Debtor(s). CASE NO.: 8:10-bk-16743-TA
MOTION FOR RELIEF FROM STAY
(MOVANT: ACE AMERICAN INSURANCE COMPANY)
1. The Property at Issue: Movant moves for relief from the automatic stay with respect to the following personal property (the "Property"):
D Vehicle (describe year, manufacturer, type, and model):
Vehicle Identification Number:
Location of vehicle (if known):
D Equipment (describe manufacturer, type, and characteristics):
Serial number(s):
Location (if known):
[8J Other Personal Property (describe type, identifying information, and location):
Payment of a settlement award between ACE American Insurance Company, ACE Property and Casualty
Insurance Company and the affiliated insurance and reinsurance companies (collectively, "ACE") and Szujan Fu,
Hsin-Hui Chen and Minna Fu under Debtor's (collectively, the "Fu Family) Policy H08049610.
2. Case History:
a. [8J A voluntary D An involuntary petition under Chapter D 7 [8J 11 D 12 D 13
was filed on (specify date): 5/19/10
b. D An Order of Conversion to Chapter
was entered on (specify date):
c. D Plan was confirmed on (specify date):
D 7 D 11 D 12 D 13
d. D Other bankruptcy cases affecting this Property have been pending within the past two years. See attached Declaration.
3. Grounds for Relief from Stay:
a. [8J Pursuant to 11 U.S.C. 362(d)(1), cause exists to grant Movant the requested relief from stay as follows:
(1) D Movant's interest in the Property is not adequately protected.
(a) D Movant's interest in the collateral is not protected by an adequate equity cushion.
(b) D The fair market value of the Property is declining and payments are not being made to Movant sufficient to protect
Movant's interest against that decline.
(c) D No proof of insurance re Movant's collateral has been provided to Movant, despite borrower(s)'s obligation to insure
. the collateral under the terms of Movant's contract with Debtor(s).
(d) D Payments have not been made as required by an Adequate Protection Order previously granted in this case.
(2) D The bankruptcy case was filed in bad faith to delay, hinder or defraud Movant.
(a) D Movant is the only creditor or one of very few creditors listed on the master mailing matrix.
(b) D The Property was transferred to Debtor(s) either just before the bankruptcy filing or since the filing.
(c) D Non-individual entity was created just prior to bankruptcy filing for the sole purpose of filing bankruptcy.
(d) D Other bankruptcy cases have been filed asserting an interest in the same Property.
(e) D The Debtor( s) filed what is commonly referred to as a "face sheet" filing of only a few pages consisting of the Petition
and a few other documents. No Schedules or Statement of Affairs (or Chapter 13 Plan, if appropriate) has been filed.
(Continued on next page)
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 . F 4001-1M.PP
Case 8:10-bk-16743-TA Doc 607 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Main Document Page 3 of 9
Motion for Relief from Stay (Personal Property) - Page 4 of 9
F 4001-1 M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
Oebtor(s). CASE NO.: 8:10-bk-16743-TA
(3) D (Chapter 12 or 13 cases only)
(a) D Postconfirmation plan payments have not been made to the standing trustee.
(b) D Postconfirmation payments required by the confirmed plan have not been made to Movant.
(4) D The lease has been rejected or deemed rejected by operation of law.
(5) l'8J For other cause for relief from stay, see attached continuation page.
b. D Pursuant to 11 U.S.C. 362(d)(2)(A), Oebtor(s) haslhave no equity in the Property; and pursuant to 362(d)(2)(B), the
Property is not necessary for an effective reorganization.
4. D Movant also seeks annulment of the stay so that the filing of the bankruptcy petition does not affect postpetition acts, as specified
in the attached Oeclaration(s).
5. Evidence in Support of Motion: (Important Note: Declaration(s) in support of the Motion MUST be attached hereto.)
a. D Movant submits the attached Oeclaration(s) on the Court's approved forms (if applicable) to provide evidence in support of
this Motion pursuant to Local Bankruptcy Rules.
b. l'8J Movant submits the attached supplemental Oeclaration(s) under penalty of perjury, to provide additional admissible evidence
in support of this Motion.
c. D Movant requests that the Court consider as admissions the statements made by Oebtor(s) under penalty of p e ~ u r y conceming
Movant's claims and the Property set forth in Oebtor's(s') Schedules. Authenticated copies of the relevant portions of the
Schedules are attached as Exhibit __
d. D Other evidence (specify):
6. l'8J An optional Memorandum of Points and Authorities is attached to this Motion.
WHEREFORE, Movant prays thatthis Court issue an Order terminating or modifying the stay and granting the following (specify
forms of relief requested):
1. l"8l Relief from the stay allowing Movant (and any successors or assigns) to proceed under applicable non-bankruptcy law to enforce
its remedies to repossess and sell the Property.
2. D Annulment of the stay so that the filing of the bankruptcy petition does not affect postpetition acts, as specified in the attached
Oeclaration( s).
3. Additional provisions requested:
a. l'8J That the Order be binding and effective despite any conversion of this bankruptcy case to a case under any other chapter of
Title 11 of the United States Code.
b. l'8J That the 14-day stay prescribed by Bankruptcy Rule 4001(a)(3) be waived.
c. D That Extraordinary Relief be granted as set forth in the Attachment (attach Optional Court Form F 4001-1M.ER).
d. D For other relief requested, see attached continuation page.
(Continued on next page)
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1 M.PP
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Main Document Page 4 of 9
Motion for Relief from Stay (Personal Property) Co Page f5 of 9
F 4001-1M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
Debtor(s). CASE NO.: 8:10-bk-16743-TA
4. If relief from stay is not granted, Movant respectfully requests the Court to order adequate protection.
Dated: October 31,2011 Respectfully submitted,
ACE American Insurance Company and ACE Property &
Casualty Insurance Company
Movant Name
LLP
Firm Name of Attorney for Movant (if applicable)
By: /s/ Jeff D. Kahane
Signature
Name: ________________________ __
Typed Name of Individual Movant or Attorney for Movant
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1M.PP
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Main Document Page 5 of 9
Motion for Relief from Stay (Personal Property) - Page 6 of 9
F 4001-1 M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
Oebtor(s). CASE NO.: 8:10-bk-16743-TA
CONTINUATION
(This Attachment is the continuation page for page 4 of the Motion for Relief From Stay, Ground for Relief
paragraph 3(a)(5).)
There is cause to grant this motion. ACE provided auto insurance to the Debtors under policy H0804961 0 (the
"Policy") from October 1, 2009 until June 17, 2010. During the Policy period, an accident took place which involved
Debtors' employee and the Fu Family.
ACE and the Fu Family reached a settlement in the amount of $17,500.00 (the "Settlement"). Insurance policies are
property of the Estate. If coverage for the Settlement is property of the estate, then ACE cannot satisfy the Settlement
unless it is granted a relief from automatic stay under Section 362 of the Bankruptcy Code. The Fu Family have agreed
that upon payment of the Settlement, they would waive all their claims against the Estate. Cause exists to lift the stay,
because if ACE does not pay the Settlement, then the claimants may have rights against other assets of the Debtors'
estate.
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1 M.PP
Case 8:10-bk-16743-TA Doc 607 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Main Document Page 6 of 9
Motion for Relief from Stay (Personal Property) - Page 7 of 9
F 4001-1 M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
Oebtor(s). CASE NO.: 8:10-bk-16743-TA
NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I.
Proposed orders do not generate an NEF because only orders that have been entered are placed on a CM/ECF docket.
PROOF OF SERVICE OF DOCUMENT
I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is:
.865 S. Figueroa Street, Suite 3100, Los Angeles, CA 90017-5450
A true and correct copy of the foregoing document described as: Notice of and Motion for Relief of Automatic Stay
Under 11 U.S.C. 362 (with supporting declarations); Memorandum of Points and Authorities in Support of ACE
American Insurance Company's Motion for Relief from Automatic Stay for the Purpose of Payment of Settlement
Award and Declaration of Helen Heifets in Support of Motion for Relief of Automatic Stay for the Purpose of
Payment of Settlement Award
___________________ ~ ______ will be served or was served (a) on the judge
in chambers in the form and manner required by LBR 5005-2(d), and (b) in the manner indicated below:
I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF") - Pursuant to controlling General
Order(s) and Local Bankruptcy Rule(s) ("LBR"), the foregoing document will be served by the court via NEF and hyperlink to
the document. On October 31, 2011 I checked the CM/ECF docket for this bankruptcy case or adversary
proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at
the email addressed indicated below:
r;gj Service information continued on attached page
II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL (indicate method for each person or entity served):
On October 31, 2011 I served the following person(s) and/or entity(ies) at the last known address(es) in this
bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States
Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follow. Listing the judge here constitutes
a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.
r;gj Service information continued on attached page
III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity
served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on I served the following person(s)
and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method) by facsimile transmission
and/or email as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later
than 24 hours after the document is filed.
D Service information continued on attached page
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
October 31, 2011 Greta Clark ~
Date Type Name s;gnatUre
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1 M.PP
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Main Document Page 7 of 9
Motion for Relief from Stay (Personal Property) - Page 8 of 9
F 4001-1M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories. Inc.
Oebtor(s). CASE NO.: 8:10-bk-16743-TA
SERVICE LIST
TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF")
Raymond G Alvarado - ralvarado@alvaradosmith.com
Todd M Arnold - tma@lnbyb.com
Phillip Ashman - mgolod@mcqueenashman.com.
pashman@mcqueenashman.com;bkumamoto@mcqueenashman.com
Richard L Barnett - rick@barnettrubin.com. rlbsec@barnettrubin.com
Ron Bender - rb@lnbyb.com
Eric S Bershatski - ericbershatski@tilemlaw.com
Ronald K Brown - rkbgwhw@aol.com
Jennifer Witherell Crastz - jcrastz@hemar-rousso.com
Ryan S Fife - ryan.fife@dbr.com. mary.avila@dbr.com;dockeUa@dbr.com
Carol J Fogleman - mfrost@bwslaw.com
Anthony A Friedman - aaf@lnbrb.com
John-patrick M Fritz - jpf@lnbrb.com
Jeffrey K Garfinkle - bkgroup@buchalter.com. jgarfinkle@buchalter.com;jmealey-
hatch@buchalter.com;docket@buchalter.com
Fredric Glass - fglass@fairharborcapital.com
Nancy S Goldenberg - nancy.goldenberg@usdoj.gov
D Edward Hays - ehays@marshackhays.com. ecfmarshackhays@gmaiLcom
Michael J Heyman - michaeLheyman@klgates.com
Mark D Houle - mark.houle@pillsburylaw.com
Jacqueline L James - jlj@lnbyb.com
Jeff DKahane - jkahane@duanemorris.com
Andy Kong - Kong.Andy@ArentFox.com
Rodger M Landau - rlandau@lgbfirm.com. kmoss@lgbfirm.com
Matthew A Lesnick - matt@lesnicklaw.com
Michael B Lubic - michael.lubic@klgates.com
Frank F McGinn - ffm@bostonbusinesslaw.com
Elissa Miller - emiller@sulmeyerlaw.com. asokolowski@sulmeyerlaw.com
Kerry A Moynihan - kerry.moynihan@hro.com. rauLmorales@hro.com
Aram Ordubegian - ordubegian.aram@arentfox.com
Ernie Zachary Park - ernie.park@bewleylaw.com
Richard Park - Richard.Park@usdoj.gov
Justin E Rawlins - jrawlins@winston.com. docketla@winston.com
Benjamin Seigel- bseigel@buchalter.com. IFS_filing@buchalter.com
David B Shemano - dshemano@pwkllp.com
Philip E Strok - pstrok@wgllp.com
United States Trustee (SA) - ustpregion16.sa.ecf@usdoj.gov
Howard J Weg - hweg@pwkllp.com
Sharon Z Weiss - sharon.weiss@hro.com. raul.morales@hro.com
Joseph M Welch - jwelch@buchalter.com. jmealey-hatch@buchalter.com;docket@buchalter.com
Johnny White - seb@blakeleyllp.com;bblakeley@blakeleyllp.com;rclifford@blakeleyllp.com
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1M.PP
Case 8:10-bk-16743-TA Doc 607 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Main Document Page 8 of 9

Motion for Relief from Stay (Personal Property) - Page 9 of 9
F 4001-1M.PP
In re (SHORT TITLE)
CHAPTER: 11
Westcliff Medical Laboratories, Inc.
Oebtor(s). CASE NO.: 8:10-bk-16743-TA
Callahan & Blaine
3 Hutton Centre Dr #900
Santa Ana, CA 92707
Department of Health Care Services
Office of Legal Services
Attn: Steven A. Oldham, Staff
Attorney
MS 0010, P.O. Box 997413
Sacramento, CA 95899-7413
Kirkland & Ellis LLP
300 N LaSalle St
Chicago, IL 60654
TR Capital Management, LLC
336 Atlantic Avenue, Suite 302
East Rockaway, NY 11518
SERVICE LIST (continued)
SERVED BY U.S. MAIL
City and County of San Francisco
Office of the TreasurerITax Collector
Legal Section
Attn: Robert L. Fletcher, Jr.,
P.O. Box B 7426
San Francisco, CA 94120-7426
David W Gee
Garvey Schubert Barer
1191 Second Ave 18th FI
Seattle, WA 98101-2939
Orange County Treasurer-Tax
Collector
Hall of Administration
333 W: Santa Ana Blvd.
SantCl Ana, CA 92701
Debt Acquisition Company of
America V, LLC
1565 Hotel Circle South, Suite 310
San Diego, CA 92108
Recy Hernandez
27615 Glasser Ave
Canyon Country, CA 91351
Riverside Claims
Post Office Box 626
Planetarium Station
New York, NY 10024-0540
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.
December 2009 F 4001-1M.PP
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Main Document Page 9 of 9
1 JEFF D. KAHANE (SBN 223329)
DUANE MORRIS LLP
2 865 S. Figueroa Street Suite 3100
Los Angeles, CA 90017-5450
3 Telephone: (213) 689-7400
Facsimile: (213) 689-7401
4 E-mail: jkahane@duanemorris.com
5 Attorneys for ACE American Insurance Company, ACE
Property & Casualty Insurance Company, and the
6 affiliated insurers and reinsurers
7
8
9
10
11
12
In re:
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION
Case No.: 8:10-bk-16743-TA
WESTCLIFF MEDICAL LABORATORIES,
13 INC.,
Chapter 11
(Jointly Administered with
14 ________________________ Case No. 8:10-bk-16746)
15 Inre: MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF ACE
AMERICAN INSURANCE COMPANY'S
MOTION FOR RELIEF FROM THE
AUTOMATIC STAY FOR THE PURPOSE
OF PAYMENT OF SETTLEMENT
AWARD
16 BIOLABS, INC.,
17 Debtor.
18
19
20
21
22
23
24
25
26
27
28
ACE American Insurance Company, ACE Property and Casualty Insurance
Company and the affiliated insurance and reinsurance companies (collectively, "ACE"), by and
through their undersigned counsel, hereby move to for relief from automatic stay for the purpose of
payment ofa claim to Szujan Fu, Hsin-Hui Chen and Minna Fu (collectively, the "Fu Family") and
respectfully state as follows:
INTRODUCTION
The Court should find there is cause to grant this motion because ACE seeks relief
from the stay to pay claims that might otherwise have to be satisfled from assets of the estate.
DM3\IS6799S.1
ACE provided auto insurance to WestcliffMedical Laboratories ("Westcliff") under
DECLARATION IN SUPPORT OF ACE'S MOTION FOR RELIEF FROM THE AUTOMATIC STAY
1
Case 8:10-bk-16743-TA Doc 607-1 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Memorandum of Points and Authorities in Support of Motion for Relief from Stay Page 1 of 4
1 policy H08049610 ("Policy") from October 1,2009 until June 17,2010. (Declaration of Helen
2 Heifets in Support of Motion for Relief from the Automatic Stay for the Purpose of Payment of
3 Settled Claim ("Heifets Dec."), filed contemporaneously herewith, ~ 2 ) . During the period when the
4 Policy was in effect, an accident took place involving an employee of Westcliff insured under the
5 Policy, and the Fu Family. (Id., ~ 3 ) .
6
ACE and the Fu Family reached a settlement in the amount of $17,500 ("Settlement")
7 resolving the Fu Family's claims. (Id., ~ 4 ) . Attached to the Heifets Dec. is a stipulation agreed by
8 ACE and the Fu Family ("Stipulation"). (Id.) In the Stipulation, the Fu Family agreed to waive their
9 claims against the estate upon payment of the Settlement. (Id.) Thus, payment of the Settlement by
10 ACE is in the best interests ofthe estate since it preserves the assets of the estate.
11
Insurance policies are property of the estate. Although cancellation of the Policy was
12 approved by the Court on January 3, 2011, see Order Granting Stipulations Resolving Relief From
13 Stay Motion was signed and entered (Docket No. 342), the claims were made before the Policy's
14 cancellation. (Heifets Dec. ~ 5 ) . If the insurance coverage for payment of the Settlement involves
15 property of the estate, then ACE cannot pay the Settlement unless it is granted relief from the
16 automatic stay.
17
For these reasons, ACE requests that this Court grant relief from the stay to ACE,
18 pursuant to 11 U.S.C. 362(d), so that ACE can pay the Settlement.
19 However, should the Court find that the insurance coverage for payment of the Settlement is
20 no longer property of the estate, then, in the alternative, ACE respectfully requests that the Court
21
22
23
find that ACE's payment of the Settlement is not barred by the stay.
JURISDICTION AND VENUE
This Court has jurisdiction over this Motion pursuant to 28 U.S.C. 157 and 1334. This
24 matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2)(A) & 157(b)(2)(O).
25 Venue is appropriate in this Court pursuant to 28 U.S.C. 1408 and 1409.
26
27
28
ARGUMENT
The Court should grant this motion because there is cause for relief from the automatic stay.
DM3\1567995.1
DECLARATION IN SUPPORT OF ACE'S MOTION FOR RELIEF FROM THE AUTOMATIC STAY
2
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Memorandum of Points and Authorities in Support of Motion for Relief from Stay Page 2 of 4
1 The filing of the bankruptcy case stays all acts to exercise control over property of the estate.
2 11.U.S.C. 362(a); Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1081-82 (9
th
3 Cir. 2000) (en bane). Insurance policies are property of the Debtor's estate. In re Minoeo Group 0
4 Cos., 799 F.2d 517,519 (9
th
Cir. 1986). Although the ACE Policy has been cancelled, the payment
5 of the Settlement by ACE would confer a benefit upon the estate by paying claims that would
6 otherwise be entitled to estate assets.
7 Relief from the stay may be granted for cause shown. 11 U.S.C. 362(d)(I). The word
8 "cause" is not defined in the Bankruptcy Code. Scripps GSB 1, LLC v. A. Partners, LLC (In re A
9 Partners LLC), 344 RR. 114, 127 (Bankr. B.D. Cal. 2006). However, "[t]he term 'cause' as used in
10 362(d)(I) is a broad and flexible concept which permits a bankruptcy court, as a court of equity, to
11 respond to inherently fact-sensitive situations." In re Indian River Estates, Inc., 293 B.R. 429k, 433
12 (Bankr. N.D. Ohio 2003) (citing In re Texas State Optical, Inc., 188 RR. 552, 556 (Bankr. B.D. Tex.
13 1995)). Hence, a decision to lift the automatic stay for cause is within the Court's discretion. In re
14 Delaney-Morin, 304 RR. 365, 369-70 (9
th
Cir. BAP 2003); In re Leisure Corp., 234 RR. 916,920
15 (9
th
Cir. BAP 1999); Mataya v. Kissinger (In re Kissinger), 72 F.3d 107, 108-109 (9
th
Cir. 1995).
16 Should the coverage for the payment of the Settlement be property of the estate, there is
17 cause to grant relief from the stay because without such relief, ACE cannot pay the Settlement, and
18 the claimants would be entitled to relief from the Debtor's estate.
19 However, if the coverage for the Claim is not property of the estate because the ACE Policy
20 was cancelled, then in the alternative, ACE respectfully requests that the Court find that the stay
21 does not bar ACE from paying the Settlement.
22 RESERVATION OF RIGHTS
23 ACE expressly reserves and does not waive any and all of its rights, defenses, limitations
24 and/or exclusions under the Policy and applicable law. ACE further reserves all rights to assert any
25 and all such rights, defenses, limitations and/or exclusions in any appropriate manner or forum
26 whatsoever (including without limitation arbitration, the United States District Courts or any state
27 court).
28 Nothing contained in this Memorandum or the Motion shall be construed as an
DM3\lS6799S.1
DECLARATION IN SUPPORT OF ACE'S MOTION FOR RELlEF FROM THE AUTOMATIC 8T A Y
3
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Memorandum of Points and Authorities in Support of Motion for Relief from Stay Page 3 of 4
1 acknowledgment the Policy, or any other insurance policy issued by ACE to Westcliff covers or
2 otherwise applied to any claims, losses, or damages on account of any claims or causes of action,
3 other than the claim that gave rise to the Settlement, are eligible for payment. ACE reserves all of its
4 rights to object to any claim for coverage under any of the ACE policies issued to the Debtors andlor
5 any claims for coverage under any settlement agreements, other than the claim that gave rise to the
6 Settlement.
7 ACE expressly reserves and does not waive any of its rights, defenses, limitations andlor
8 exclusions under the policies issued by ACE to the Debtor, including but not limited to the Policy,
9 and the applicable law. ACE further reserves all rights to assert any and all such rights, defenses,
10 limitations andlor exclusions in any appropriate manner or forum whatsoever (including without
11 limitations arbitration, United States District Court, or any State Court).
12 CONCLUSION
13 WHEREFORE, ACE respectfully requests that this Court enter an Order granting relief from
14 the automatic stay for the purpose of allowing ACE to satisfy the Settlement by paying to Szujan Fu,
15 Hsin-Hui Chen and Minna Fu an amount of $17,500.00, or, in the alternative, finding that ACE's
16 payment of the Settlement is not barred by automatic stay.
17
18
19
20
21
22
23
Dated: October 31, 2011
Of Counsel:
24
BAZELON LESS & FELDMAN, P.C.
Helen Heifets
1515 Market Street, Suite 700
25 Philadelphia, P A 19102-1907
Telephone: 215-568-1155
26 Facsimile: 215-568-9319
27
28
Respectfully submitted,
DUANE MORRIS LLP
By: lsi JeffD. Kahane
Attorneys for A CE American Insurance Company, ACE
Property & Casualty Insurance Company, and the
affiliated insurers and reinsurers
DECLARATION IN SUPPORT OF' ACE's MOTION FOR RELIEF FROM THE AUTOMATIC STAY
ElM3\] 567995.] 4
Case 8:10-bk-16743-TA Doc 607-1 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Memorandum of Points and Authorities in Support of Motion for Relief from Stay Page 4 of 4
1 JEFF D. KAHANE (SBN 223329)
DUANE MORRIS LLP
2 865 S. Figueroa Street Suite 3100
Los Angeles, CA 90017-5450
3 Telephone: (213) 689-7400
Facsimile: (213) 689-7401
4 E-mail: jkahane@duanemorris.com
5 Attorneys for ACE American Insurance Company, ACE
Property & Casualty Insurance Company, and the
6 affiliated insurers and reinsurers
7
8
9
10
11
12
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION
In re:
WESTCLIFF MEDICAL LABORATORIES,
13 INC.,
14 Debtor.
- - - - - - - - - - - - - - - - - - - - - - - - ~ ~ ~ ~ ~
15 Inre:
16 BIOLABS, INC.,
17 Debtor.
I I - - - - - - - - - - - - - - - - - - - - - - - - - ~ ~ ~ ~
18
I, Helen Heifets, declare as follows:
Case No.: 8:10-bl\:-16743-TA
Chapter 11
(Jointly Administered with
Case No. 8:1O-bk-16746)
DECLARATION OF HELEN HEIFETS IN
SUPPORT OF MOTION FOR RELIEF
FROM AUTOMATIC STAY FOR THE
PURPOSE OF PAYMENT OF SETTLED
CLAIMS
19
20 1. I am a shareholder at Bazelon Less & Feldman, P.C., a law firm located at 1515
21 Market Street, Suite 700, Philadelphia, PA 19102. I represent ACE American Insurance Company,
22 ACE Property & Casualty Insurance Company, and their affiliated insurers and reinsurers
23 (collectively, "ACE"). I have personal knowledge of the facts set forth herein, which were gained
24 through that representation and through my review of ACE books and records in the course of that
25 representation. If called as a witness, I could and would competently testify to all facts set forth
26 herein.
27 2. ACE provided auto insurance to the Debtors under policy H08049610 (the "Policy")
28 from October 1,2009 until June 17,2010.
DECLARATION IN SUPPORT OF ACE'S MOTION FOR RELIEF FROM THE AUTOMATIC STAY
DM3\1567995.1
. 1
Case 8:10-bk-16743-TA Doc 607-2 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Declaration of Helen Heifets in Support of Motion for Relief from Automatic Sta Page 1 of 2
I'
3. During the period when the Policy was in effect, an accident took place involving an
2 employee of Westcliff insured under the Policy, and Szujan Fu, Hsin-Hui Chen and Minna Fu
3 (collectively, the "Fu Family").
4
4. ACE and the Fu Family reached a settlement in the amount of$17,500 (hereinafter,
5 the "Settlement") resolving the Fu Family's claims. Attached hereto as Exhibit A is a true and
6 correct copy of a stipulation agreed to by ACE and the Fu Family ("Stipulation"). In the Stipulation,
7 the Fu Family agreed that upon payment of the Settlement, they would waive all claims against the
8 estate.
9
5. On December 10,2010, ACE filed a Motion for Relief From Automatic Stay for the
10 Purpose of Retroactive Cancellation ofInsurance Policies (Docket No. 323). A Stipulation and
11 Order Resolving Relief From Stay was signed by the parties and filed on December 21,2010
12 (Docket No. 334). On January 3, 2011, the Order Granting Stipulation Resolving Relief From Stay
13 Motion was signed and entered (Docket No. 342).
14
I declare under penalty of perjury under the law of the United States of America that
15 the foregoing is true and correct.
16
Dated: October 24,2011
17
By:
Helen Heifets
18
19
20
21
22
23
24
25
26
27
28
DM3\\567995.\
DECLARATION IN SUPPORT OF ACE'S MOTION FOR RELIEF FROM THE AUTOMATIC STAY
2
Case 8:10-bk-16743-TA Doc 607-2 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Declaration of Helen Heifets in Support of Motion for Relief from Automatic Sta Page 2 of 2
1 JEFF D. KAHANE (SBN 223329)
DUANE MORRIS LLP
2 865 S. Figueroa Street Suite 3100
Los Angeles, CA 90017-5450
3 Telephone: (213) 689-7400
Facsimile: (213) 689-7401
4 E-mail: jkahane@duanemorris.com
5 Attorneys for ACE American Insurance Company,
ACE Property & Casualty Insurance Company,
6 and the affiliated insurers and reinsurers
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION
In re: )
Lead Case No. 8:1O-bk-16743-TA
)
(Jointly Administered with
WESTCLIFF MEDICAL
)
Case No.8: I 0-bk-16746-T A)
LABORATORIES, INC.,
Debtor.
)
Chapter 11
)
)
lnre:
)
STIPULATION FOR RELIEF FROM THE
BIOLABS, INC.
)
AUTOMATIC STAY REGARDING
Debtors.
)
INSURANCE COVERAGE FOR THE FU'
)
FAMILY CLAIM
)
!8l Affects All Debtors
)
)
o Affects WestcliffMedical Laboratories,
)
Inc. only
)
)
o Affects Biolabs, Inc. only
)
)
ACE American Insurance Company, ACE Property and Casualty Insurance Company,
and/or possibly other affiliated members of the ACE group of companies (collectively "ACE")
and Szujan Fu, Hsin-Hui Chen and Minna Fu (collectively, the "Fu Family") hereby enter into
this stipulation (the "Stipulation") based on the following recitals of fact:
RECITALS
A. On May 19, 20 to, Westcliff filed a voluntary petition for relief under Chapter 11
of Title 11, United States Code (the "Bankruptcy Code"). No trustee has been appointed, and
Westcliff continues to manage its financial affairs as debtor in possession pursuant to Sections
Case 8:10-bk-16743-TA Doc 607-3 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Exhibit A to Declaration of Helen Heifets in Support of Motion for Relief from A Page 1 of 3
1 1107 and 1108 of the Bankruptcy Code.
2 B. ACE provided auto insurance to Westcliffunder policy H08049610 (the "Policy")
3 from October 1,2009 until June 17,2010, at 12:01 a.m.
4 C. On or about October 23, 2009, during the period when the Policy was in effect, an
,
5 accident took place involving an employee of Westcliff insured under the Policy, and the Fu
6 Family.
7 D. ACE and the Fu Family reached a settlement (hereinafter, the "Settlement") as
8 follows:
9 a. Szujan Fu - $10,000;
lOb. Hsin-Hui Chen - $6,000
11 c. Minna Fu - $1,500
12 E. The Policy is the property of the Estate. Therefore, ACE advised the Fu Family
13 that ACE cannot satisfy the Settlement unless it is granted a relief from automatic stay (the
14 "Stay") under Section 362 of the Bankruptcy Code.
15 F. ACE agreed to move for relief from automatic stay for leave to satisfy the
16 Settlement.
17 BASED UPON THE FOREGOING, IT IS HEREBY STIPULATED, CONSENTED
18 AND AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
19 STIPULATION
20 WHEREFORE, based on the foregoing recitals of fact, the parties hereto hereby
21 stipulate as follows:
22 1. In the event that the Court grants ACE's motion for relief from stay, ACE shall
23 pay the amount of the Settlement to the Fu Family.
24 2. Upon payment of the Settlement and conditioned thereon, the Fu Family, and
25 each of them, shall be deemed to have waived all claims against the Debtors and any right t?
26 receive any distributions or payments from the Debtors or their bankruptcy estates.
27 3. Nothing in this Stipulation shall be construed as an acknowledgment that the
28 Policy, or any other insurance policy issued by ACE to the Debtors, covers or otherwise applies
2
Case 8:10-bk-16743-TA Doc 607-3 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Exhibit A to Declaration of Helen Heifets in Support of Motion for Relief from A Page 2 of 3
1 to any claims, losses, or damages 011 account of any claims or otherwise, other than the claim that
2 gave rise to the Settlement, or that any such claims or causes of action, other than the claim that
3 gave rise to the Settlement,are eligible for payment. ACE reserves all of its rights to object to
4 . any claim for coverage under any of the ACE poliCies issued to the Debtors and/or any claims
5 for coverage under any settlement agreementsj other than the claim that gave rise to the
6 Settlement.
7 4. ACE .expressly reserves and does not waive any of its rights, defenses, limitations
8 and/or exclusions under the policies issued by ACE to the Debtor" including but not limited to
9 the Policy, and the applicable law. ACE further reserves all rights to assert any and all such
10 rights, defenses, limitations. and/or exclusions in any appropriate manner or forum whatsoever
11 (including without limitation arbitration, United States District Court, or any State Court).
12 5.
This Stipulation may be executed in counterparts, originals, facsimiles or e-mail,
13 each of which taken together shall constitute one and the same instrument.
14 SO STIPULATED.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated: October .it;, 20 II
BAZELON LESS & FELDMAN, P.C.
/'# ~ J t jl /
By: /If" r/ft;1!t IJ'
HELEN HEIFETS
Attorneys for ACE American Insurance Company,
ACE Property and Casualty Insurance Company,
and/or possibly other affiliated members of the
ACE group of companies
3
Dated: October z,o ; 2011
BALAMUTH HARRINGTON
BY:""/_
~
Attorneys for Szuj an FUr Hsin-Hui
Chen and Minna Fu
Case 8:10-bk-16743-TA Doc 607-3 Filed 10/31/11 Entered 10/31/11 16:27:41 Desc
Exhibit A to Declaration of Helen Heifets in Support of Motion for Relief from A Page 3 of 3