1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 KEVIN KHWAJA, an individual and Case No.: 3:23-cv-00717-JO-SBC ISHA DEEN, an individual, 13 PARTIAL ORDER ON CROSS- Plaintiffs, 14 MOTIONS FOR SUMMARY v. JUDGMENT 15 FEDERAL INSURANCE COMPANY, 16 an Indiana Corporation, and Does 17 1through 50, inclusive, 18 Defendants. 19 20
21 Plaintiffs, Kevin Khawaja and Isha Deen (“the Deens”), had a personal injury 22 liability policy with Defendant Federal Insurance Company (“Federal”). After Federal 23 declined to represent the Deens in two separate state lawsuits, the Deens brought suit 24 alleging that Federal improperly refused coverage. Dkt. 1. The parties filed cross-motions 25 for summary judgment contesting whether Federal had a duty defend the Deens in the state 26 lawsuits and as a result whether Federal breached its contract with the Deens and breached 27 the covenant of good faith and fair dealing. Dkts. 23 (“Def.’s Mot. Summ. J.”), 24 (“Pl.’s 28 Mot. Summ. J.”). For the reasons provided below, the Court grants in part and denies in 1 part Plaintiffs’ motion for summary judgment and grants in part and denies in part 2 Defendant’s motion for summary judgment. 3 I. BACKGROUND 4 This coverage dispute arises from two separate state lawsuits accusing the Deens of 5 committing various intentional torts. In the first action, Deen v. Deen, 37-2016-00022636- 6 CU-OR-NC, Isha’s father, Chodry, and sisters, Sana and Sidrah, (the “In-Laws”) alleged 7 that the Deens falsely imprisoned and defamed them in an attempt to steal the In-Laws’ 8 property rights. Dkt. 23-3 (“Def.’s Ex. B”). In the second case, Deen v. Fitzgerald Yap 9 Kreditor LLP, 37-2021-00015644-CU-FR-NC, the Deens’ former law firm, Fitzgerald Yap 10 Kreditor, LLP, accused the Deens of filing multiple unfounded lawsuits against the firm in 11 a bad faith campaign to avoid paying their legal fees. Dkt. 23-8 (“Def.’s Ex. G”). The 12 Deens requested that Federal, their primary insurance company, cover their legal defense 13 in these two cases pursuant to its third-party liability coverage. Dkt. 23-17 (“Def.’s Ex. 14 N”). However, Federal refused to provide representation in the two cases for multiple 15 reasons,1 Dkts. 24-18, 24-19, 24-21, 24-23, including an “intentional acts” exclusion in its 16 policy that barred coverage for acts intended to cause harm. Def.’s Ex. N at 44. As a result, 17 the Deens allege that Federal breached its contract by failing to defend them in these two 18 cases as well as breached the covenant of good faith and fair dealing. Dkt. 1. 19 A. The Underlying Lawsuits 20 1. Deen v. Deen 21 In Deen v. Deen, the Deens and the In-Laws contest who is the rightful owner of a 22 property located at 17911 El Brazo, Rancho Santa Fe, California (the “El Brazo house”). 23 On July 5, 2016, the Deens filed a state court action against the In-Laws alleging that the 24 In-Laws filed false deed documents to take ownership of the El Brazo house. Dkt. 23-2 25 (“Def.’s Ex. A”). In response, on August 19, 2016, the In-Laws filed crossclaims against 26
27 1 The Court addressed Federal’s other grounds for refusing coverage during its August 21, 2024 28 1 the Deens. Def.’s Ex. B. The In-Laws, in turn, alleged that the Deens tried to pressure the 2 In-Laws into transferring the deed by holding them captive, physically brutalizing and 3 threatening them, and ultimately, defaming them to their neighbors. Id. 4 In their cross-complaint, the In-Laws detailed how the Deens attempted to steal the 5 deed to the El Brazo house by abusing their trust. Id. at 6–10. According to the In-Laws’ 6 complaint, the family conflict first began when the In-Laws requested that Isha, as her 7 father’s power of attorney, register the deed to the El Brazo house in their names. Id. at 6– 8 8. In response, Isha allegedly lied to the In-Laws and claimed ownership of the El Brazo 9 house by putting the deed in her own name. Id. at 8–9. The In-Laws claimed that when 10 they discovered Isha’s lies and confronted her, she pled ignorance and promised to execute 11 a new deed that would transfer the property to Chodry. Id. at 9–10. When the In-Laws 12 later discovered that Isha had not kept this promise, Chodry announced that he would 13 record the deed himself to ensure that it was properly registered in his own name. Id. at 14 10. 15 In order to prevent Chodry and Isha’s sisters from reclaiming the deed, the Deens 16 allegedly confined the In-Laws in the El Brazo house and subjected them to threats and 17 violence. Id. at 10–11. The In-Laws asserted that during their confinement of seven days, 18 the Deens did the following: (1) physically struck them; (2) threatened that Kevin’s 19 brothers and other family members would rape Isha’s sisters; (3) threatened to kill the In- 20 Laws if they left the El Brazo house, called the authorities, or attempted to have the deed 21 recorded; (4) threatened to have them arrested by making false accusations of car theft, 22 forgery, and false impersonation; (5) threatened to publish defamatory material against 23 Sana and Sidrah if any of the In-Laws left the El Brazo house, called the authorities, or 24 attempted to have the deed recorded; (5) withheld medication from Chodry and Sidrah; (6) 25 forced Sana to transfer $150,000 of her personal funds into an account that the Deens could 26 access; (7) threatened to have Kevin’s fundamentalist relatives move in, take over the 27 house, and use the house for illegal activities; (8) patrolled the house with firearms to 28 intimidate the In-Laws; and (9) used a kitchen knife to attack them. Id. The In-Laws 1 alleged that they were only able to end this abuse by calling the police and obtaining a 2 restraining order against Kevin. Id. at 11. 3 After leaving the El Brazo house, the Deens allegedly continued to harass and 4 defame the In-Laws. Id. at 11–14. The In-Laws contended that after they were released, 5 they were ultimately able to record the grant deed and claim ownership of the El Brazo 6 house. Id. at 12. Purportedly, the Deens, in turn, threatened, intimidated, and pressured 7 the In-Laws to transfer the grant deed back to them and to drop the charges against Kevin. 8 Id. To achieve these goals, the Deens allegedly threatened to make false criminal 9 accusations against the In-Laws, surveilled their house, and interfered with their internet, 10 security, and telephone and mail service. Id. The In-Laws also claimed that as a means to 11 pressure them to surrender the deed to the El Brazo house, the Deens knowingly made false 12 and offensive comments to the In-Laws’ neighbors, family friends, and community 13 members about their education, income, relationships, health histories, and ownership 14 rights of the El Brazo house and other properties. Id. at 12, 28–29. Moreover, Kevin also 15 purportedly broke into the El Brazo house and attacked Isha’s father, causing him injury 16 and leading to Kevin’s second arrest and a second restraining order. Id. at 12. Finally, the 17 In-Laws alleged that the Deens threatened them in an attempt to prevent them from 18 pursuing their crossclaims and attending state court hearings. Id. at 13. 19 Based on these allegations, the In-Laws brought claims of assault, battery, false 20 imprisonment, physical elder abuse, defamation, and intentional infliction of emotional 21 distress in addition to claims of quiet title, slander of title, breach of contract, fraud, breach 22 of fiduciary duty, and conversion. See generally Def.’s Ex. B. 23 2. Deen v. Fitzgerald Yap Kreditor LLP 24 The Deen v. Deen litigation also gave rise to the second lawsuit at issue in this case, 25 Deen v. Fitzgerald Yap Kreditor LLP. In this secondary lawsuit, the Deens and a law firm 26 that represented them in Deen v. Deen, Fitzgerald Yap Kreditor LLP (“FYK”), contested 27 the quality of the law firm’s services and whether outstanding legal fees were owed. On 28 April 7, 2021, Isha filed suit against FYK, alleging that the firm failed to adequately defend 1 them, incurred unnecessary litigation costs, and falsified expenses. Dkt. 23-7 (“Def.’s Ex. 2 F”) at 5–8. On July 12, 2021, FYK filed a cross-complaint against Isha and Kevin, alleging 3 that the Deens failed to pay their bill and engaged in bad-faith litigation proceedings against 4 the firm in an attempt to evade paying such costs.2 Def.’s Ex. G. 5 In her original complaint against FYK, Isha alleged that she and Kevin were forced 6 to bring multiple legal actions against FYK in order to get back the money they were owed. 7 Def.’s Ex. F at 7–10. Specifically, she contended that she filed an application for a 8 Mandatory Fee Arbitration in order to obtain a refund from FYK. Id. at 7–8. However, 9 she asserted that because FYK botched the arbitration process, that she and Kevin had no 10 choice but to a file a form complaint in state court against the firm. Id. Because of FYK’s 11 purported dilatory conduct in Deen v. Deen, she and Kevin also filed a complaint to the 12 state bar. Id. Moreover, she alleged that due to FYK’s alleged malfeasance and exorbitant 13 legal costs, she and Kevin were forced to file for Chapter 13 reorganization in bankruptcy 14 court, listing FYK as a creditor. Id. at 8. In sum, Isha alleged that the Deens had taken 15 these measures to (1) prevent FYK from abusing the legal process, (2) confront the firm’s 16 lies and malpractice, and (3) collect the money they were owed. Id. at 4–8. On these 17 grounds, Isha sued FYK for breach of fiduciary duty, violation of the Fair Debt Collection 18 Act, fraud, breach of contract, abuse of process, injunctive relief, professional negligence, 19 discrimination, breach of the implied covenant of good faith and faith dealing, and 20 conversion. See generally Def.’s Ex. F. 21 In turn, FYK’s cross-complaint alleged that the Deens not only failed to meet their 22 payment obligations under the contract but also cost the law firm significant expenses in 23 responding to their ill-founded legal actions. Def.’s Ex. G. Contrary to the Deens’ 24 accusations, FYK claimed that the firm provided excellent representation and that all fees 25 26 27 2 FYK filed a first amended cross-complaint against the Deens on April 7, 2021. Dkt. 24-22. However, as the factual allegations are practically identical between the complaints, the Court refers to 28 1 and costs incurred were reasonable and necessary in light of the complex nature of the case. 2 Id. at 4–12. FYK contended that despite their well-deserved fees, the Deens refused to pay 3 their legal bills and resorted to initiating bad-faith litigation to evade paying. See generally 4 Def.’s Ex. G. For these reasons, FYK filed suit against the Deens for breach of contract, 5 breach of the implied covenant of good faith and fair dealing, and common counts for 6 services rendered, seeking damages both for the legal costs owed by the Deens and for the 7 expenses incurred in attempting to compel the Deens to pay their debts. See id. 8 In support of its claims, FYK provided a detailed account of the Deens’ purported 9 bad-faith legal actions. Id. at 12–16. Specifically, FYK alleged that the Deens engaged in 10 a campaign of bad-faith litigation by willfully misusing the arbitration process and judicial 11 system and further accused the Deens of acting “with a willful and knowing disregard of 12 the rights of FYK [with] clear[] inten[t] to cause harm to FYK and its attorneys.” Id. at 13 12–13, 17. Accordingly, FYK cited the following legal actions as evidence of the Deens’ 14 bad behavior: the Deens purportedly (1) applied for Mandatory Fee Arbitration before the 15 San Diego County Bar Association despite knowing that FYK’s attorneys were not 16 members; (2) petitioned for a new Mandatory Fee Arbitration hearing by challenging the 17 judge’s neutrality and FYK’s ethics; (3) petitioned for the removal of the Mandatory Fee 18 Arbitration from the San Diego County Bar Association to the State Bar of California; (4) 19 filed a civil action in Orange County Superior Court but failed to serve FYK’s attorneys or 20 notify the San Diego County Bar Association; (5) filed for bankruptcy under Chapter 13, 21 listing FYK as a creditor; (6) objected to FYK’s request for arbitration before JAMS and 22 later delayed such arbitration by producing a false retainer agreement; (7) filed a petition 23 in San Diego Superior Court to stay the JAMS arbitration on account of the judge’s 24 neutrality and thereafter, moved ex parte to enforce the stay without informing FYK; (8) 25 applied ex parte for a temporary restraining order against Eoin Kreditor, an attorney with 26 FYK; and (9) filed a complaint in San Diego Superior Court raising the same claims as 27 those at issue here. Id. at 12–16. FYK also noted that many of the above actions were 28 either dismissed or withdrawn, demonstrating their frivolous and meritless nature. Id. 1 B. Federal’s Insurance Policy & Coverage 2 The Deens requested coverage for these lawsuits invoking Federal’s liability for 3 third-party lawsuits. The Deens’ insurance policy with Federal specifically stated that it 4 would “cover damages a covered person is legally obligated to pay for personal injury or 5 property damage, which takes place anytime during the policy period and are caused by an 6 occurrence, unless stated otherwise or an exclusion applies.” Def.’s Ex. N. at 30. It defined 7 an “[o]ccurrence” as “an accident” or “an offense first committed within the policy period 8 resulting in: false arrest, false imprisonment, or wrongful detention; wrongful entry or 9 eviction; malicious prosecution or humiliation; or libel, slander, defamation of character, 10 or invasion of privacy, to which this insurance applies.” Id. Critically, the policy stated, 11 “[w]e will defend a covered person against any claim or suit seeking covered damages for 12 personal injury or property damage.” Id. at 35. 13 This policy also included an “[i]ntentional acts” exclusion barring coverage for 14 allegations involving willfulness, maliciousness, fraudulence, dishonesty, or intent to 15 injure. Id. at 44. The exclusion explicitly stated: 16 We do not cover any damages arising out of a willful, malicious, fraudulent or dishonest act or any act intended by any covered 17 person to cause personal injury or property damage, even if the 18 injury or damage is of a different degree or type than actually intended or expected. But we do cover such damages if the act 19 was intended to protect people or property unless another 20 exclusion applies. An intentional act is one whose consequences could have been foreseen by a reasonable person. 21
22 Id. at 44. 23 Invoking this policy, the Deens requested that Federal represent them in the two 24 above state lawsuits, but the insurance company declined to provide coverage. With 25 respect to Deen v. Deen, Federal (after some initial back and forth) eventually took the 26 position that coverage was barred due to its intentional acts exclusion. Dkts. 24-18, 24-19, 27 24-21. After initially offering coverage for Deen v. Fitzgerald Yap Kreditor LLP, Federal 28 later notified the Deens that it would not be defending them in the case on the grounds that 1 this action only involved contractual claims that were not covered as opposed to personal 2 injury claims which were. Dkts. 24-23. 3 C. Procedural History 4 On April 19, 2023, the Deens sued Federal3 for failing to defend them in the two 5 above lawsuits. Dkt. 1. Specifically, in their complaint, the Deens alleged that Federal 6 breached the terms of their contract and the covenant of good faith and fair dealing in 7 refusing to cover their legal representation in Deen v. Deen and Deen v. Fitzgerald Yap 8 Kreditor LLP. 9 In February 2024, both the Deens and Federal filed cross-motions for summary 10 judgment. See Pl.’s Mot. Summ. J.; Def.’s Mot. Summ. J. The Deens moved for partial 11 summary judgment, seeking declaratory relief that Federal had a duty to defend them in 12 these two lawsuits. Pl.’s Mot. Summ. J. Federal, on the other hand, moved for summary 13 judgment against all of the Deens’ causes of action. Def.’s Mot. Summ. J. On August 21, 14 2024, the Court issued its partial ruling on the parties’ cross-motions for summary 15 judgment on the record and released a subsequent written order resolving all issues except 16 for whether the intentional acts exclusion in Federal’s policy bars coverage for the 17 defamation and false imprisonment claims in Deen v. Deen, and the possible malicious 18 prosecution claim4 in Deen v. Fitzgerald Yap Kreditor LLP. See Dkts. 47, 48, 49. After 19 this order, the parties filed supplemental briefing on this matter. Dkts. 56, 59. The 20 following order addresses the remaining issue of the intentional acts exclusion in both the 21 above cases. 22
23 3 The Deens also sued DOES 1-50, which they claim are entities, whether individual, corporate, 24 or otherwise, who are legally responsible in some manner for the events. Dkt. 1. As the Deens still have 25 not identified these alleged defendants, the Court need not address them.
26 4 The Court ruled that while FYK’s claims were styled as contractual claims, the factual allegations could also support malicious prosecution claims. Dkt. 47. Because a court must look to the facts of the 27 claim, rather than how the party styles their causes of actions, Scottsdale Ins. Co. v. MV Transp., 36 Cal. 4th 643, 654 (2005), the Court found in its previous ruling that the FYK complaint raised the possibility 28 1 II. LEGAL STANDARD 2 A. Motion for Summary Judgment Standard 3 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil 4 Procedure if the moving party demonstrates the absence of a genuine issue of material fact 5 and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 6 322 (1986). A fact is material when, under the governing substantive law, it could affect 7 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 8 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute as to a material fact is 9 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the 10 nonmoving party. Anderson, 477 U.S. at 248–50. 11 A party seeking summary judgment always bears the initial burden of establishing 12 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving 13 party can satisfy this burden in two ways: (1) by presenting evidence that negates an 14 essential element of the nonmoving party’s case; or (2) by demonstrating that the 15 nonmoving party failed to establish an essential element of the nonmoving party’s case on 16 which the nonmoving party bears the burden of proof at trial. Id. at 322–23. The moving 17 party may also satisfy its initial burden by demonstrating that the opposing party lacks 18 sufficient evidence from which a jury could find an essential element of the opposing 19 party’s claim. Id. at 325; Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F. 3d. 20 1099, 1102 (9th Cir. 2000). 21 Once the moving party establishes the absence of genuine issues of material fact, the 22 burden shifts to the nonmoving party to set forth facts showing that a genuine issue of 23 disputed fact remains. Celotex, 477 U.S. at 324. The nonmoving party cannot merely rest 24 on his pleadings, but must direct the court to specific, triable facts by “citing to particular 25 parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A); see Anderson, 477 U.S. at 26 250. The court must view all inferences drawn from the underlying facts in the light most 27 favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 28 U.S. 574, 587 (1986). “Credibility determinations, the weighing of evidence, and the 1 drawing of legitimate inferences from the facts are jury functions, not those of a judge, 2 [when] he [or she] is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 3 255. 4 B. Insurance Coverage Cases 5 In insurance coverage cases, the summary judgment standard operates in a distinct 6 fashion given how it intersects with the substantive law on insurance defense. 7 Liability insurers generally owe a broad duty to defend their policy holders. See 8 Gonzalez v. Fire Ins. Exch., 234 Cal. App. 4th 1220, 1229 (2015). Accordingly, a carrier 9 must defend a suit if the allegations allow for the possibility of coverage. See id. (internal 10 citation omitted). “The determination [of] whether the insurer owes a duty to defend 11 usually is made in the first instance by comparing the allegations of the complaint with the 12 terms of the policy.” Id. (internal citation omitted). “Facts extrinsic to the complaint also 13 give rise to a duty to defend when they reveal the possibility that the claim may be covered 14 by the policy.” Id. (internal citation omitted). Critically, the duty to defend does not turn 15 on the truth of the allegations or the merits of the claimant’s case, but rather on whether 16 the allegations, when coupled with extrinsic evidence, potentially allow for coverage. 17 Allstate Ins. Co. v. Barnett, No. C-10-0077 EMC, 2010 WL 3619778, at *6 (N.D. Cal. 18 Sept. 9, 2010). 19 “This legal framework shapes a party’s burden when seeking summary judgment.” 20 Gonzalez, 234 Cal. App. 4th at 1229. To warrant summary judgment, an insured need only 21 prove the existence of a potential for coverage to demonstrate that the insurer had a duty 22 to defend. Montrose Chem. Corp. v. Superior Ct., 6 Cal. 4th 287, 300 (1993) (emphasis in 23 original). If the insured can show that the “underlying complaint alleges the insured’s 24 liability for damages potentially covered under the policy, or if the complaint might be 25 amended to give rise to a liability that would be covered under the policy,” the insured has 26 met its burden. Id. at 299. Accordingly, if an insured can establish a genuine issue of 27 material fact as to whether coverage is feasible given the allegations and any extrinsic facts 28 known to the insurer, it will prevail. Id. 1 On the other hand, for an insurer to obtain summary judgment, an insurer must show 2 that no reasonable juror could find coverage possible in order to eliminate the duty to 3 defend. Id. at 301. To prevail at the summary judgment stage, the insurer must eliminate 4 the possibility of coverage either by showing that the allegations raised preclude the 5 possibility of coverage or by demonstrating that undisputed facts and conclusive evidence 6 bar any coverage. All Green Elec., Inc. v. Sec. Nat’l Ins. Co., 22 Cal. App. 5th 407, 412– 7 14 (2018). If an insurer can prove that it did not owe a duty to defend as a matter of law, 8 it likewise meets its burden to prove that it neither breached its contractual obligations to 9 the insured nor breached the covenant of good faith and fair dealing. Waller v. Truck Ins. 10 Exch., Inc., 11 Cal. 4th 1, 35 (1995), as modified on denial of reh’g (Oct. 26, 1995). 11 III. DISCUSSION 12 As the Court has already ruled that the terms of Federal’s policy otherwise allow for 13 the possibility of coverage in both Deen v. Deen and Deen v. Fitzgerald Yap Kreditor LLP, 14 its analysis below will exclusively focus on whether the intentional acts exclusion 15 specifically bars coverage. After evaluating whether Federal had a duty to defend the 16 Deens in these two actions, the Court will then examine whether Federal has met its burden 17 to prove that it did not breach its contract or the covenant of good faith and fair dealing as 18 a matter of law. 19 A. Whether the Intentional Acts Exclusion Bars the Duty to Defend 20 The Court must examine whether the intentional acts exclusion bars coverage for the 21 defamation and false imprisonment claims in Deen v Deen and the potential malicious 22 prosecution allegations in Deen v. Fitzgerald Yap Kreditor LLP.5 23 Under insurance law, exclusions against coverage are construed narrowly and the 24 insurer bears the burden of proving their application. Waller, 11 Cal. 4th at 16. In assessing 25
26 5 The Deens do not contend that Federal had a duty to defend on any of the other causes of action 27 raised in Deen v Deen. See Pl.’s Mot. Summ. J. While the Deens argued that Federal had a duty to defend them in Deen v. Fitzgerald Yap Kreditor LLP on the basis that the cross-complaint raised a defamation 28 1 whether the facts and claims alleged against the insured are precluded by the exclusion, the 2 insurer must show that the exclusion applies in “all possible worlds,” bearing in mind the 3 possibility that complainants can amend their pleadings. Atl. Mut. Ins. Co. v. J. Lamb, Inc., 4 100 Cal. App. 4th 1017, 1039 (2002). 5 However, an insurer will not have a duty to defend where coverage is effectively 6 infeasible given the allegations in the complaint. This is because “an insurance company 7 has the right to limit the coverage of a policy [it issues] and when it has done so, the plain 8 language of the [policy] must be respected.” Cont’l Cas. Co. v. Phoenix Constr. Co., 46 9 Cal. 2d 423, 432 (1956). Thus, if the “third party complaint can by no conceivable theory 10 bring it within the policy coverage,” an insurer will be relieved of its duty to defend. All 11 Green, 22 Cal. App. 5th at 414. In assessing whether there is such a “conceivable theory,” 12 an insured is not free “to manufacture hypothetical scenarios beyond those encompassed 13 by the pleadings or the facts known to the insurer.” Id. at 414, 417. Rather, coverage must 14 be feasible given the facts alleged by the plaintiff in the complaint and any other extrinsic 15 facts known to the insurer at the inception of the lawsuit. Id.; see Gray v. Zurich Ins. Co., 16 65 Cal. 2d 263 (1966) (finding that an intentional torts exclusion did not bar coverage 17 because the allegations allowed for the possibility that the insured acted negligently or in 18 self-defense); Vann v. Travelers Companies, 39 Cal. App. 4th 1610, 1612–16 (1995) 19 (same). Critically, “[w]here a policy clearly excludes coverage, [courts] will not indulge 20 in tortured constructions to divine some theoretical ambiguity in order to find coverage.” 21 Titan Corp. v. Aetna Cas. & Sur. Co., 22 Cal. App. 4th 457, 469 (1994). If the insurer can 22 prove that the insured would have to plead entirely new, different facts to evade the 23 exclusion, it has effectively established that there is no conceivable theory of coverage. All 24 Green, 22 Cal. App. 5th at 418. 25 If the allegations in the complaint permit coverage even with the exclusion, an 26 insurer can only be freed of the duty to defend if conclusive evidence proves that there is 27 absolutely no potential for coverage. Id. 412–13. In such circumstances, the insured must 28 point to undisputed facts extrinsic to the allegations. Vann, 39 Cal. App. 4th at 1614–15. 1 However, if this evidence does not “eliminate the possibility of potential coverage, but 2 instead merely places in dispute whether one or more of the exclusions contained in the 3 policies apply,” the insurer has not met its burden. Id. at 1615 (internal citation and 4 quotation marks omitted). This principle recognizes that insurers have a burden to 5 investigate claims and thus have the responsibility to provide conclusive evidence 6 demonstrating the absence of coverage if they wish to be relieved of their duties. Dua v. 7 Stillwater Ins. Co., 91 Cal. App. 5th 127, 137 (2023), review denied (July 12, 2023). 8 Here, in determining whether Federal has a duty to defend, the Court must first 9 review the language of its intentional acts exclusion and then assess whether it bars 10 coverage in either Deen v. Deen or Deen v. Fitzgerald Yap Kreditor LLP. Federal’s 11 insurance policy explicitly states: 12 We do not cover any damages arising out of a willful, malicious, fraudulent or dishonest act or any act intended by any covered 13 person to cause personal injury or property damage, even if the 14 injury or damage is of a different degree or type than actually intended or expected. But we do cover such damages if the act 15 was intended to protect people or property unless another 16 exclusion applies. An intentional act is one whose consequences could have been foreseen by a reasonable person. 17
18 Def.’s Ex. N. at 44. 19 California courts have interpreted intentional acts exclusions, like the one above, as 20 barring coverage of acts that the insured subjectively intended to or likely knew would 21 cause harm. Mullen v. Glens Falls Ins. Co., 73 Cal. App. 3d 163, 171 (1977) (holding that 22 intentional acts exclusions only “exclude from coverage injuries and damages resulting 23 from acts involving an element of wrongfulness or misconduct” even if the “acts otherwise 24 are performed intentionally”). Provisions that exclude coverage for “willful, malicious, 25 fraudulent or dishonest act[s]” or acts intended to cause harm are treated identically to 26 Insurance Code Section 533, which establishes “that an insurance company is not liable for 27 a loss caused by a wilful act of the insured.” Delgado v. Interinsurance Exch. of Auto. 28 Club of S. California, 47 Cal. 4th 302, 313–14 (2009). Under this standard, an insured 1 only acts intentionally if he or she “knew or believed [his] conduct was substantially certain 2 or highly likely to result in that kind of damage” or “with preconceived design to inflict 3 injury.” Gonzalez, 234 Cal. App. 4th at 1239 (“[I]t is the insured’s subjective belief as to 4 whether his or her conduct would cause the type of damage claimed that excludes 5 coverage.”). Courts usually find a possibility of coverage despite intentional acts 6 exclusions given the possibility that the insured may have committed these alleged 7 intentional acts by being “reckless or negligent.” KM Strategic Mgmt., LLC v. Am. Cas. 8 Co. of Reading PA, 156 F. Supp. 3d 1154, 1170–71 (C.D. Cal. 2015) (citing J. Croskey, et 9 al., Cal. Prac. Guide: Ins. Lit. at ¶ 7:1066.2 (Rutter 2014)). Thus, allegations of false 10 imprisonment or slander, which necessarily involve intentional conduct do not necessarily 11 involve an intent to cause harm. Id. at 1239–40. 12 Critically, in assessing whether these exclusions apply, courts must examine the 13 general factual situation alleged in the complaint, looking beyond the allegations directly 14 tied to the covered injury, to assess whether there is a possibility that the insured acted 15 without the intent to cause harm. Century Transit Sys., Inc. v. Am. Empire Surplus Lines 16 Ins. Co., 42 Cal. App. 4th 121, 128 (1996). If the allegations are “inseparably intertwined” 17 with the intent to cause harm, an insurer does not have a duty to defend. Jane D. v. 18 Ordinary Mutual, 32 Cal. App. 4th 643, 652–53 (1995). 19 1. Deen v. Deen 20 Applying the above standard, the Court must examine whether the factual allegations 21 in the In-Laws’ cross-complaint allow for the possibility that the Deens committed false 22 imprisonment or defamation recklessly, negligently, or out of self-defense or whether they 23 necessarily involved the intent to cause harm. 24 Here, Federal did not have a duty to defend the Deens because the In-Laws’ 25 defamation and false imprisonment allegations are premised on and intertwined with the 26 Deens’ intent to cheat and injure their relatives. See generally Def.’s Ex. B. In their 27 crossclaims, the In-Laws asserted that all of the Deens’ actions were driven by their desire 28 to steal the In-Laws’ property rights to the El Brazo house. Id. The In-Laws contended 1 that the Deens decided to confine them in the house for seven days because they did not 2 want Chodry to record the deed in his name. Id. at 6–11, 25–26. According to the In- 3 Laws’ allegations, the Deens only subjected the In-Laws to false imprisonment in order to 4 pressure them into relinquishing their rights to the property. See id. Moreover, after Kevin 5 was arrested for imprisoning and threatening the In-Laws, the Deens then purportedly 6 continued to harass and defame them in a campaign to get them to drop the charges against 7 Kevin and surrender their rights to the El Brazo house. Id. at 12. The In-Laws’ false 8 imprisonment and defamation claims are therefore “inseparably intertwined” with their 9 allegations of the Deens’ dishonest and wrongful intent to cheat them out of their house 10 and evade criminal charges. See Jane D., 32 Cal. App. 4th at 652–53. Given that the In- 11 Laws explicitly asserted that the Deens’ actions were designed to cause these specific 12 harms, the cross-complaint precludes the possibility that the Deens acted negligently, 13 recklessly, or in self-defense. See KM, 156 F. Supp. 3d at 1170. As significant portions of 14 the In-Laws’ cross-complaint would have to be removed to evade Federal’s intentional acts 15 exclusion, the Court finds that there is no conceivable theory of coverage here. All Green, 16 22 Cal. App. 5th at 418. 17 In addition to alleging that the Deens acted in furtherance of their malicious scheme, 18 the In-Laws pled facts that, by their very nature, exclude the possibility that the Deens 19 acted with benign intentions. The In-Laws explicitly alleged that the Deens carried out 20 their false imprisonment scheme by physically attacking them, withholding their 21 medication, robbing them, patrolling the house with firearms, and threatening to rape and 22 kill them. Def.’s Ex. B at 10–11, 25–26. These are not actions that can be taken without 23 the intent to cause harm. While one can make physical contact with another person either 24 negligently or recklessly without the intent to injure, it defies reason that one could coerce 25 and imprison through a campaign of physical violence, intimidation, withholding 26 medication, and threats of sexual violation without intending to cause harm. See All Green, 27 22 Cal. App. 5th at 414. 28 The same reasoning applies to the In-Laws’ defamation allegations. The In-Laws 1 did not merely assert that the Deens lied about their ownership of the El Brazo home— 2 actions that could be ascribed to the Deens’ genuine belief that the home belonged to them. 3 Def.’s Ex. B at 12, 28–29. Instead, they specifically contended that the Deens falsely 4 denigrated the In-Laws with respect to private and personal matters entirely unrelated to 5 their home ownership dispute, such as their education levels, income, relationships, and 6 health histories. Id. In other words, not only did the In-Laws explicitly assert that the 7 Deens spread false information in order to blackmail them into doing their bidding, but 8 they also alleged actions—humiliating them with rumors about their education, heath, and 9 relationships—that could not possibly have a benign purpose. See id. Short of rewriting 10 the In-Laws’ complaint, these allegations leave no room for the possibility that the Deens 11 were acting for any reason but to cause harm.6 See All Green, 22 Cal. App. 5th at 418. 12 The facts of this case stand in stark contrast to those where courts have found that 13 coverage was possible despite an intentional acts exclusion. In Gray v. Zurich Ins. Co., the 14 Supreme Court of California concluded that an intentional acts exclusion did not relieve 15 the insurance provider of its duty to defend. 65 Cal. 2d at 276. Even though the complaint 16 at issue in Gray alleged that the insured “wilfully, maliciously, brutally and intentionally 17 assaulted” the claimant, the court reasoned that the combination of the complaint’s likely 18 overstatement of the facts and the insured’s insistence that he acted in self-defense allowed 19 for the possibility that the insured acted without the intent to cause harm. Id. at 267, 276– 20 77; see also Vann, 39 Cal. App. 4th at 1612–16 (finding that allegations that the insured 21 “improperly handled and disposed of” various hazardous substances did not preclude the 22 possibility that the substances were released accidentally in light of the complaint’s vague 23
24 25 6 The Deens insist that these allegations allow for the possibility that they intended to “defend property” which is a permissible form of intent under Federal’s policy. Dkt. 59. The Court disagrees. 26 Given the allegations waged here, it is inconceivable that the Deens’ actions were only driven by their desire to protect their property. See Def.’s Ex. B. While their purported objective may have been to retain 27 the El Brazo house, this does not change the fact that they allegedly intended to cause injury in false imprisoning and defaming the In-Laws in order to realize this goal. See Jane D., 32 Cal. App. 4th at 652– 28 1 allegations concerning the nature of the acts causing the contamination and the insured’s 2 state of mind). Likewise, in Gonzalez v. Fire Ins. Exch., a California court of appeals found 3 that coverage for allegations of false imprisonment and slander was not barred on account 4 of an intentional acts exclusion. 234 Cal. App. 4th at 1239–40. There, while the claimant 5 alleged that she was trapped in a room with the insured, who assaulted her, and that the 6 insured slandered her in telling others she had consented to the sexual interaction, she also 7 brought a claim of negligence against the insured. Id. at 1225. The court recognized that 8 slander “does not require proof” of intent to cause harm and reasoned that the complaint 9 left open the possibility that the insured caused injury negligently “in creating the 10 conditions that led to [the claimant’s] false imprisonment.” Id. at 1239–40. 11 Here, the In-Laws’ complaint is neither ambiguous about the intent involved nor 12 alludes to potential negligence.7 Critically, the In-Laws’ allegations are neither “broad” 13 nor leave open the “how,” “when,” or “why” the personal injuries at issue occurred. Vann, 14 39 Cal. App. 4th at 1615–17 (reasoning that coverage was possible because the complaint 15 was vague and left many questions unanswered). Rather, as explained above, it painted a 16 pointed and detailed picture of the Deens engaging in actions for the exclusive purpose of 17 hurting their relatives in order to swindle them out of their house. See generally Def.’s Ex. 18 B. Unlike in Gonzalez, there are no negligence claims raised here—nor could there be 19 when the In-Laws alleged actions that by their very nature are inextricably intertwined with 20 a specific and elaborate campaign designed to inflict injury. Cf. 234 Cal. App. 4th at 1225. 21 Thus, the alleged facts of the complaint eliminate the possibility that the Deens falsely 22
23 7 The Deens contend that there is a “possibility of coverage” given the fact that Federal changed 24 its position on whether it had a duty to defend. See Dkt 59 at 4; see also Dkts. 24-18, 24-19, 24-21, 24- 25 23. This argument is not persuasive. In providing its tentative position, Federal reserved the right to later assert defenses, which are recognized by the courts. Val’s Painting & Drywall, Inc. v. Allstate Ins. Co., 26 53 Cal. App. 3d 576, 586 (1975). Moreover, “it is well settled that the interpretation of an insurance policy is a legal rather than a factual determination,” and thus, an insurer’s admission that coverage may be 27 available is “irrelevant” in making this determination. Chatton v. Nat’l Union Fire Ins. Co., 10 Cal. App. 4th 846, 865 (1992). Accordingly, Federal’s prior variance does not alter the Court’s analysis here that 28 1 imprisoned or defamed the In-Laws negligently or recklessly. Cf. id. at 1239–40. In order 2 for the Deens to be eligible for coverage, the In-Laws would have to completely alter the 3 factual foundation of the complaint.9 All Green, 22 Cal. App. 5th at 418. Thus, the Court 4 finds that Federal has met its burden as it has shown that its intentional acts exclusion bars 5 coverage for the In-Laws’ cross-complaint against the Deens. See id. at 414. 6 For the above reasons, the Court finds that Federal has met its burden to prove that 7 it did not have a duty to defend. Accordingly, the Court grants in part Federal’s motion for 8 summary judgment and denies in part the Deens’ motion for summary judgment as to 9 Federal’s duty to defend them in Deen v. Deen. 10 2. Deen v. Fitzgerald Yap Kreditor LLP 11 Next, the Court must assess whether the facts alleged in FYK’s cross-complaint 12 allow for the possibility that the Deens could have acted negligently or out of self-defense 13 against their attorneys or whether these allegations inherently involved malintent. 14 The Court concludes that Federal has not met its burden to prove that FYK’s 15 allegations preclude the possibility that the Deens pursued their various litigation actions 16 against FYK without the intent to cause harm. See generally Def.’s Ex. G. Although FYK 17
18 8 The Deens insist that there is a possibility of coverage because the material facts of the underlying 19 complaint are in dispute. Dkt. 59. However, the relevant disputes concern whether or not the Deens committed these acts—not the nature of their intent in executing these actions. See id. Even in light of 20 the In-Laws’ alleged recantation to the police, this would constitute a withdrawal of the allegations, not 21 an amendment. See id. at 7. To reflect this different narrative, the In-Laws would have to completely alter the factual premise of their complaint. See All Green, 22 Cal. App. 5th at 418. Importantly, the 22 Court’s analysis does not turn on the truth of the allegations, but rather, on whether the allegations, when coupled with extrinsic evidence, allow for the possibility that the Deens could have executed these actions 23 without malintent. See Allstate Ins. Co., 2010 WL 3619778, at *6. Given that these allegations cannot be severed from the intent to hurt the In-Laws, the Deens have not established such a possibility. See Jane 24 D., 32 Cal. App. 4th at 652–53. 25 9 Critically, in coming to this determination, the Court passes no judgement on the merits or 26 credibility of these allegations. Rather, as the duty to defend does not turn on the truth of the allegations, but whether the allegations when coupled with extrinsic evidence potentially allow for coverage, the Court 27 finds that coverage is barred given that the In-Laws’ false imprisonment and defamation allegations against the Deens are inseparable from the Deens’ purported intent to cause harm. See Allstate Ins. Co., 28 1 alleged that the Deens “intend[ed] to cause harm to FYK and its attorneys” and “willfully” 2 misused the judicial system by bringing their actions in “bad faith,” it fails to allege facts 3 that make it inconceivable that the Deens had other motives. Id. at 12, 17; see Gray, 65 4 Cal. 2d at 276. As seen in the below examples, FYK simply recited the procedural history 5 of these actions without expanding on how or why these actions were in “bad faith”: 6 explaining that the Deens (1) filed for a Mandatory Fee Arbitration before the San Diego 7 County Bar Association despite knowing that FYK’s attorneys were not members; (2) filed 8 for new a hearing by challenging the judge’s neutrality and FYK’s ethics; (3) filed a civil 9 action without serving FYK’s attorneys or notifying the state bar; and (4) filed for 10 bankruptcy under Chapter 13, listing FYK as a creditor. See Def.’s Ex. G at 12–13. While 11 FYK’s complaint alludes to bad intentions, the facts pled by no means preclude the 12 possibility of other motivations. See All Green, 22 Cal. App. 5th at 414. For example, the 13 Deens conceivably could have acted out of incompetence and a genuine belief in the bias 14 of the court and the merits of their case. As FYK’s allegations concerning the “nature” of 15 the Deens’ lawsuits and their state of mind are not narrowly defined, they allow for the 16 possibility that the Deens acted recklessly or at least without the intent to injure. Vann, 39 17 Cal. App. 4th at 1612–16; see also KM, 156 F. Supp. 3d at 1170. 18 Moreover, Isha’s own complaint demonstrates that there is a conceivable theory in 19 which the Deens acted out of self-defense. Def.’s Ex. F. In her complaint, Isha alleged 20 that FYK breached its fiduciary duty to the Deens by committing malpractice, incurring 21 unnecessary litigation costs, and falsifying expenses. See id. at 5–8. Accordingly, she 22 asserted that she and Kevin had no other option but to bring multiple lawsuits to redress 23 their injuries, report FYK’s malfeasance to the bar, avoid bankruptcy, and to put an end to 24 FYK’s abuse of the legal system. See id. at 7–10. Therefore, the Deens’ claims that they 25 were acting in defense of their rights create a dispute of fact regarding their intentions. See 26 id.; Vann, 39 Cal. App. 4th at 1615. Accordingly, as FYK’s cross-complaint allows for the 27 possibility that the Deens acted without the intent to cause injury, the intentional acts 28 exclusion does not relieve Federal of its duty to defend. See All Green, 22 Cal. App. 5th 1 at 412–13. 2 This same reasoning applies to Federal’s argument that Insurance Code Section 533 3 bars coverage here. As explained above, California courts treat intentional acts exclusions 4 in the same way they treat Insurance Code Section 533 as both exclude coverage for 5 “willful act[s] of the insured.” Delgado, 47 Cal. 4th at 313. For the reasons discussed 6 above, Federal has failed to conclusively prove that the Deens’ conduct here was intended 7 to cause damage. Thus, it is not relieved of its duty to defend on account of Section 533. 8 Given that FYK’s crossclaims do not eliminate the possibility of coverage, Federal 9 can only escape the duty to defend if it can point to undisputed extrinsic evidence that the 10 Deens subjectively intended to cause FYK harm. See Vann, 39 Cal. App. 4th at 1615. 11 Because Federal has not provided any extrinsic conclusive evidence proving the Deens’ 12 intent in bringing these legal actions, the Court finds that it has not met its burden to 13 eliminate the possibility of coverage. 14 In conclusion, as Federal has failed to prove that its intentional acts exclusion would 15 bar coverage for Deen v. Fitzgerald Yap Kreditor LLP in “all possible worlds,” the Court 16 finds that Federal had a duty to defend the Deens. Atl. Mut., 100 Cal. App. 4th at 1039. 17 Accordingly, the Court denies in part Federal’s motion for summary judgment and grants 18 in part the Deens’ motion for summary judgment as to Federal’s duty to defend the Deens 19 in Deen v. Fitzgerald Yap Kreditor. 20 B. Breach of Contract and of the Covenant of Good Faith and Fair Dealing 21 Lastly, the Court must examine whether Federal has proven that the Deens’ claims 22 for breach of contract and breach of the covenant of good faith and fair dealing fails as a 23 matter of law. 24 “Unreasonable delay in paying policy benefits or paying less than the amount due is 25 actionable withholding of benefits which may constitute a breach of contract as well as bad 26 faith giving rise to damages in tort.” Intergulf Dev. LLC v. Superior Ct., 183 Cal. App. 4th 27 16, 20 (2010). Accordingly, where an insurer has shown that there is “no potential for 28 coverage and hence, no duty to defend under the terms of the policy” there can be no action 1 for breach of the contract and thus, no action for the “implied covenant of good faith and 2 fair dealing.” Waller, 11 Cal. 4th at 35. 3 With respect to Deen v. Deen, Federal has proven as a matter of law that it did not 4 have a duty to defend the Deens against the In-Laws’ cross-complaint. See supra, Section 5 III.A.1. Federal has therefore proven by extension that it has not breached its contract with 6 the Deens nor the covenant of good faith and fair dealing. See Waller, 11 Cal. 4th at 35. 7 Regarding Deen v. Fitzgerald Yap Kreditor, Federal could not establish that the intentional 8 acts exclusion barred coverage for the Deens. See supra, Section III.A.2. Therefore, by 9 the same token, Federal has not met its burden to establish that it has neither breached its 10 contractual duties to the Deens nor breached the covenant of good faith and fair dealing. 11 See Waller, 11 Cal. 4th at 35. The Court therefore grants in part Federal’s motion for 12 summary judgment regarding the Deens’ claims for breach of contract and breach of the 13 covenant of good faith and fair dealing pursuant to Deen v. Deen and denies in part its 14 motion for summary Judgment with respect to the Deens’ claims for breach of contract and 15 breach of the covenant of good faith and fair dealing pursuant to Deen v. Fitzgerald Yap 16 Kreditor. 17 IV. CONCLUSION 18 First, as the Court found that Federal did not have a duty to defend the Deens in 19 Deen v. Deen, the Court GRANTS IN PART Federal’s motion for summary judgment and 20 DENIES IN PART the Deens’ motion for summary judgment. Second, because the Court 21 determined that Federal did have a duty to defend the Deens in Deen v. Fitzgerald Yap 22 Kreditor, the Court DENIES IN PART Federal’s motion for summary judgment and 23 GRANTS IN PART the Deens’ motion for summary judgment. Third, as the Court found 24 that Federal did not breach its contract with the Deens nor the covenant of good faith and 25 fair dealing for failing to represent the Deens in Deen v. Deen, the Court GRANTS IN 26 PART Federal’s motion for summary judgment. Lastly, because the Court concluded that 27 Federal failed to demonstrate as a matter of law that it neither breached its contract with 28 the Deens nor breached the covenant of good faith and fair dealing for failing to represent | ||}them in Deen vy. Fitzgerald Yap Kreditor, the Court DENIES IN PART Federal’s motion 2 || for summary judgment. 3 Coupled with the Court’s earlier August 21, 2024 rulings, the Court GRANTS IN 4 ||PART AND DENIES IN PART Plaintiffs’ motion for summary judgment, Dkt. 24, and 5 ||GRANTS IN PART AND DENIES IN PART Federal’s motion for summary judgment, 6 || Dkt. 23. 7 IT IS SO ORDERED. 8 || Dated: September 30, 2024 9 10 Honorable Jinsook Ohta” United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28