United Specialty Insurance Company v. Bani Auto Group, Inc.

• Court: District Court, N.D. California
• Decided: September 19, 2025
• Docket: 5:18-cv-01649
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 UNITED SPECIALTY INSURANCE Case No. 18-cv-01649-BLF COMPANY, 9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 MOTION FOR SUMMARY v. JUDGMENT; AND DENYING 11 DEFENDANTS’ MOTION FOR BANI AUTO GROUP, INC.; CLUB PARTIAL SUMMARY JUDGMENT 12 SPORTIVA, INC. f/k/a DRIVE A DREAM, INC.; and SIAVOSH BANIHASHEMI a/k/a [Re: ECF 162, 164] 13 SIA BANI, 14 Defendants. 15

16 17 United Specialty Insurance Company (“United”) filed this action to recoup $1,000,000 that 18 it paid to settle a wrongful death suit brought against its insureds Siavosh Banihashemi (“Bani”), 19 Bani Auto Group, Inc. (“Bani Auto”), and Club Sportiva, Inc. (“Club Sportiva”) (collectively, 20 “Bani Defendants”). See Compl., ECF 1. This Court granted United’s motion for summary 21 judgment, finding the Bani Defendants jointly and severally liable for reimbursement of the 22 $1,000,000 settlement. See United Specialty Ins. Co. v. Bani Auto Grp., Inc. (“Bani I”), No. 18- 23 CV-01649-BL, 2021 WL 4170780, at *10 (N.D. Cal. Sept. 14, 2021). 24 Only Bani appealed, arguing that this Court erred in finding him jointly and severally 25 liable for reimbursement of the settlement along with Bani Auto and Club Sportiva. See United 26 Specialty Ins. Co. v. Banihashemi (“Bani II”), No. 21-17042, 2023 WL 2400877, at *1 (9th Cir. 27 Mar. 8, 2023). The Ninth Circuit agreed, holding that “a finding of joint and several liability may 1 issue of fact regarding proper allocation of the settlement that precluded a finding of joint and 2 several liability against Bani on the record before it. See id. The Ninth Circuit vacated the 3 summary judgment ruling and remanded “for further proceedings, which may include additional 4 factual development, on the question of whether Bani is jointly and severally liable as a joint 5 tortfeasor or as an alter ego of the other Bani Defendants.” Id. 6 Now before the Court are the parties’ post-remand cross-motions for summary judgment. 7 United again seeks summary judgment against the Bani Defendants, asserting that Bani is jointly 8 and severally liable for reimbursement of the $1,000,000 both as a joint tortfeasor in the 9 underlying action and as an alter ego of Bani Auto and Club Sportiva. See Pl.’s Mot., ECF 166. 10 The Bani Defendants seek partial summary judgment on two issues, first that United cannot 11 produce evidence of its allocation of the $1,000,000 settlement, and second that Bani is not jointly 12 and severally liable for reimbursement of the settlement. See Defs.’ Mot., ECF 162. 13 For the reasons discussed below, United’s motion for summary judgment is GRANTED 14 and the Bani Defendants’ motion for partial summary judgment is DENIED. 15 I. BACKGROUND 16 The underlying action arose from the death of David Wright while he was driving a Ferrari 17 automobile in an Exotic Car Tour organized by the Bani Defendants. The Ferrari went off the side 18 of the road, resulting in a fatal wreck. David Wright’s widow, Patrice Wright, filed two state court 19 actions, San Mateo County Superior Court Case No. 17CIV02816 (“Wright I”) and San Mateo 20 County Superior Court Case No. 18CIV04730 (“Wright II”), that ultimately were consolidated 21 into a single suit against Bani, Bani Auto Group, and Club Sportiva (“the Wright action”). See 22 Greer Decl. Ex. 1 (Wright I SAC); Ex. 4 (Wright II Compl.); Ex. 7 (Wright Settlement 23 Agreement), ECF 166. The Wright action alleged among other things that David Wright rented 24 the Ferrari to drive in an Exotic Car Tour; he lost control of the Ferrari and was killed when it 25 crashed; and his death was caused by negligence on the part of Bani, Bani Auto, and Club 26 Sportiva in the maintenance of the Ferrari and the selection of the route for the Exotic Car Tour. 27 See Greer Decl. Ex. 1 (Wright I SAC); Ex. 4 (Wright II Compl.). The Bani Defendants tendered 1 reservation of rights. United settled the Wright action on behalf of the three Bani Defendants for 2 the policy limit of $1,000,000. See Greer Decl. Ex. 7 (Wright Settlement Agreement). 3 United thereafter filed the present federal court action against the Bani Defendants and two 4 related entities, asserting claims for: (1) policy rescission, (2) declaratory relief re no duty to 5 defend, (3) declaratory relief re no duty to defend, (4) declaratory relief re no duty to indemnify, 6 (5) declaratory relief re no duty to indemnity, (6) recoupment of defense expenses, and 7 (7) recoupment of indemnity payments. See Compl., ECF 1. 8 This Court granted summary judgment for United on Claims 4 and 7, determining that the 9 claims in the Wright action are not covered under the policy and that United is entitled to 10 reimbursement of the $1,000,000 settlement it paid on behalf of the Bani Defendants under a 11 reservation of rights. See Bani I, 2021 WL 4170780, at *10. The Court entered judgment for 12 United and against Bani, Bani Auto Group, and Club Sportiva, jointly and severally, in the amount 13 of $1,000,000 plus prejudgment interest. See Judgment, ECF 90. The Court dismissed the two 14 other defendants and also dismissed Claims 1, 2, 3, 5, and 6 of United’s complaint. See Order, 15 ECF 89. 16 Only Bani appealed the summary judgment ruling, arguing that this Court should not have 17 found him jointly and severally liable for reimbursement of the $1,000,000 settlement along with 18 Bani Auto and Club Sportiva. See Bani II, 2023 WL 2400877, at *1. The Ninth Circuit agreed 19 and vacated the judgment, finding that there was a material issue of fact regarding allocation of the 20 $1,000,000 settlement among the Bani Defendants. See id. The Ninth Circuit remanded for 21 further proceedings on the allocation issue, including factual development on the question of 22 whether Bani is jointly and severally liable for reimbursement of the settlement, either as a joint 23 tortfeasor in the Wright action or as an alter ego of Bani Auto and Club Sportiva. See id. 24 Upon issuance of the mandate, this Court reopened the case, held a case management 25 conference, and reopened discovery. See Orders, ECF 119, 128. The parties engaged in discovery 26 for nearly two years before filing and briefing the present cross-motions for summary judgment on 27 the allocation issue. 1 II. LEGAL STANDARD 2 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 4 Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. 5 P. 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue 6 of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 7 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving party bears the burden of 8 proof at trial, the moving party need only prove that there is an absence of evidence to support the 9 non-moving party’s case.” Id. 10 “Where the moving party meets that burden, the burden then shifts to the non-moving 11 party to designate specific facts demonstrating the existence of genuine issues for trial.” Oracle, 12 627 F.3d at 387. “[T]he non-moving party must come forth with evidence from which a jury 13 could reasonably render a verdict in the non-moving party’s favor.” Id. “The court must view the 14 evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the 15 nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. “‘Where the record taken as a whole 16 could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 17 trial.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 18 (1986)). 19 When the parties file cross-motions for summary judgment, the court reviews each motion 20 “separately, giving the nonmoving party for each motion the benefit of all reasonable inferences.” 21 Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017) (internal quotation marks 22 and citation omitted). 23 III. DISCUSSION 24 The Ninth Circuit vacated the prior judgment based on its determination that “[o]n the 25 record before the district court, United Specialty was not entitled to summary judgment as a matter 26 of California law.” Bani II, 2023 WL 2400877, at *1. Citing the two lead California cases1 on 27 1 allocation, LA Sound USA, Inc. v. St. Paul Fire & Marine Ins. Co., 156 Cal. App. 4th 1259 (2007), 2 and Axis Surplus Ins. Co. v. Reinoso, 208 Cal. App. 4th 181 (2012), the Ninth Circuit found that 3 the evidence then before this Court was not “sufficient to establish that United Specialty engaged 4 in ‘a detailed analysis of how the indemnity costs were spent.’” See Bani II, 2023 WL 2400877, at 5 *1 (quoting LA Sound, 156 Cal. App. 4th at 1273). On that basis, the Ninth Circuit concluded that 6 there was a material issue of fact regarding allocation of the $1,000,000 settlement amount among 7 the insureds. The Ninth Circuit remanded the case to this Court for further proceedings, including 8 further factual development as to whether Bani is jointly and severally liable for repayment of the 9 settlement amount “as a joint tortfeasor” in the underlying Wright action, or “as an alter ego of the 10 other Bani Defendants.” Id. 11 Following remand, the parties engaged in discovery for almost two years, which has 12 resulted in a more fully developed record. On the current record, the parties have filed cross- 13 motions for summary judgment or partial summary judgment, addressed in turn below. Before 14 taking up those substantive motions, however, the Court addresses the parties’ requests for judicial 15 notice and objections to evidence. 16 A. Requests for Judicial Notice 17 “The court may judicially notice a fact that is not subject to reasonable dispute,” either 18 because it “is generally known within the trial court’s territorial jurisdiction,” or “can be 19 accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” 20 Fed. R. Evid. 201(b). 21 1. United’s Requests for Judicial Notice (ECF 166, 168) 22 United has filed requests for judicial notice with both its motion for summary judgment 23 and its opposition to the Bani Defendants’ motion for partial summary judgment. See Pl.’s RJNs, 24 ECF 166, 168. 25 In both requests, United asks the Court to take judicial notice of filings from the Wright 26 action and other documents: (1) the second amended complaint in Wright I; (2) the complaint in 27 Wright II; (3) the California Highway Patrol’s report on David Wright’s accident; (4) the request 1 (6) excerpts of Bani’s deposition taken in Wright I; (7) excerpts of Patrice Wright’s deposition 2 taken in Wright I; (8) corporate statements filed by Bani Auto and Club Sportiva; and (9) a Minute 3 Order entered in Wright I. See Pl.’s RJNs, ECF 166, 168. 4 The Court may take judicial notice of the pleadings and other filings in the Wright action, 5 the California Highway Patrol report, and publicly filed corporate statements. See Reyn’s Pasta 6 Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice 7 of court filings and other matters of public record.”). United’s requests for judicial notice are 8 GRANTED as to items 1-5 and 8-9. 9 However, “deposition testimony is not an established fact amenable to judicial notice[.]” 10 Caliz v. City of Los Angeles, No. CV 15-5161-JLS (KS), 2021 WL 3042281, at *5 (C.D. Cal. Apr. 11 27, 2021). “Courts in this circuit have denied requests for judicial notice of deposition 12 transcripts[.]” Greiser v. Chavez, No. EDCV 22-1600 JGB (SPX), 2024 WL 3005898, at *3 (C.D. 13 Cal. Mar. 27, 2024) (collecting cases). United’s requests for judicial notice are DENIED as to 14 items 6-7. 15 The Court’s denial of United’s requests for judicial notice of the depositions does not mean 16 that the Court cannot consider them as evidence in this case. There is no dispute regarding the 17 authenticity of the deposition transcripts. Moreover, Bani’s deposition statements are party 18 admissions. Accordingly, the Court will consider the deposition testimony as evidence, even 19 though the Court declines to take judicial notice of the deposition testimony. 20 2. Bani Defendants’ Requests for Judicial Notice (ECF 163, 170) 21 The Bani Defendants have filed requests for judicial notice with both their motion for 22 partial summary judgment and their opposition to United’s motion for summary judgment. See 23 Defs.’ RJNs, ECF 163, 170. 24 In connection with their own motion for partial summary judgment, the Bani Defendants 25 ask the Court to take judicial notice of the request for Bani’s dismissal from Wright I, and the 26 minute order consolidating the two Wright actions. See Defs.’ RJN, ECF 163. The Court may 27 take judicial notice of filings in the Wright action. See Reyn’s Pasta Bella, 442 F.3d at 746 n.6. 1 In connection with their opposition to United’s motion for summary judgment, the Bani 2 Defendants ask the Court to take judicial notice of the California Highway Patrol report on David 3 Wright’s accident. See Defs.’ RJN, ECF 170. The Court may take judicial notice of public 4 records. See Reyn’s Pasta Bella, 442 F.3d at 746 n.6. The Bani Defendants’ request for judicial 5 notice in support of their opposition to United’s motion is GRANTED. 6 B. Evidentiary Objections 7 1. United’s Evidentiary Objections 8 United objects to Bani’s declaration dated April 24, 2025, submitted in opposition to 9 United’s motion for summary judgment (“Bani Opposition Declaration”), and the declaration of 10 the Bani Defendants’ counsel, Brian C. Zhang, submitted with the Bani Defendants’ sur-reply 11 (“Zhang Sur-Reply Declaration”). See Bani Opp. Decl., ECF 169-3; Zhang Sur-Reply Decl., ECF 12 180-1. 13 a. Bani Opposition Declaration (ECF 169-3) 14 United objects to paragraphs 5-8 of Bani’s declaration dated April 24, 2025, submitted in 15 opposition to United’s motion for summary judgment (“Bani Opposition Declaration), on the 16 ground that the declaration directly contradicts Bani’s prior deposition testimony. United 17 contends that Bani was a joint tortfeasor in the underlying Wright action based on his deposition 18 testimony regarding his personal involvement in inspecting and selecting the route for the Exotic 19 Car Tour and knowledge that the Ferrari’s right rear tire needed repair. United claims that 20 paragraphs 5-8 of the Bani Opposition Declaration blatantly and improperly contradict Bani’s 21 deposition testimony regarding his personal involvement in those activities. 22 “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an 23 affidavit contradicting his prior deposition testimony.” See Van Asdale v. Int’l Game Tech., 577 24 F.3d 989, 998 (9th Cir. 2009) (quotation marks and citation omitted). “[I]f a party who has been 25 examined at length on deposition could raise an issue of fact simply by submitting an affidavit 26 contradicting his own prior testimony, this would greatly diminish the utility of summary 27 judgment as a procedure for screening out sham issues of fact.” Id. (quotation marks and citation 1 This rule is subject to two limitations. See Van Asdale, 577 F.3d at 998. First, the Ninth 2 Circuit has “made clear that the rule does not automatically dispose of every case in which a 3 contradictory affidavit is introduced to explain portions of earlier deposition testimony[.]” Id. 4 (quotation marks and citation omitted). “[R]ather, the district court must make a factual 5 determination that the contradiction was actually a ‘sham.’” Id. (quotation marks and citation 6 omitted). “Second, our cases have emphasized that the inconsistency between a party’s deposition 7 testimony and subsequent affidavit must be clear and unambiguous to justify striking the 8 affidavit.” Id. at 998-99. “Thus, the non-moving party is not precluded from elaborating upon, 9 explaining or clarifying prior testimony elicited by opposing counsel on deposition [and] minor 10 inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence 11 afford no basis for excluding an opposition affidavit.” Id. at 999 (quotation marks and citation 12 omitted). 13 The challenged paragraphs of Bani’s Opposition Declaration, paragraphs 5-8, are set forth 14 below, along with the relevant excerpts of Bani’s prior deposition testimony. 15 ¶ Bani’s Opposition Declaration Bani’s Deposition Testimony 16

17 ¶ 5 “The route for the Exotic Car Tour was “Q. And what -- and the route you selected originally selected by the previous owner was the same route that was used on 18 of Club Sportiva, who was also my former September 7, 2016? business partner, in either 2009 or 2010. A. The route initially was different back in 19 The route was altered or updated since 2009. then by my team to update the stops on Q. When was it changed to the route that was 20 the route for customers to switch cars, but used in – on September 2016? otherwise utilized the same piece of road A. I don’t know offhand. 21 as the original route, Highway 84.” Q. Did you select the route that was used on September 7, 2016? 22 Bani Opp. Decl. ¶ 5. A. Yes.”

23 Greer Decl. Ex. 2 (Bani Dep.) 14:17-15:1, ECF 166. 24

25 ¶ 6 “Prior to the Accident, I did not inspect Q. Now, when you did the examination of the route for the Exotic Car Tour.” the route along 84, did you look for drop-offs 26 such as the one in Exhibit 3? Bani Opp. Decl. ¶ 6. A. I personally and others that attend the 27 Exotic Car Tour or any of our experiences side of the white line. We don’t look for 1 anything outside of the white line.” Q. The shoulder? 2 A. Or the shoulder, correct.”

3 Greer Decl. Ex. 2 (Bani Dep.) 19:23-20:8.

4 ¶ 7 “Prior to the Accident, I did not inspect Q. Okay. Now, you mentioned that because the Ferrari California driven by David of the 2/32nds of an inch on the right rear tire 5 Wright in the Exotic Car Tour (the as exhibited on Exhibit 11, that this Ferrari ‘Vehicle’), nor did I specifically direct or California would have been discussed at a 6 instruct any employee regarding meeting. What meeting was that? inspection of the Vehicle. Other members A. Operations meeting. 7 of my team inspected the Vehicle as part Q. And when is the operations meeting? of its regular inspection processes.” A. It changes based off the schedule of 8 everyone working but typically once a week. Bani Opp. Decl. ¶ 7 Q. Who’s present at the operations meeting? 9 A. It would be the operations team and most usually myself. 10 Q. Okay. And in September – the first week of September 2016, who would be on the 11 operations team? A. Anthony, Steven Small, Mike Johnson, 12 myself.

13 Greer Decl. Ex. 2 (Bani Dep.) 44:1-12.

15 ¶ 8 “Prior to the Accident, I had no (same as above) knowledge of the tread depth of the tires 16 on the Vehicle, and I did not specifically direct or instruct any employee regarding 17 maintenance of the Vehicle. While Bani Auto implemented processes and policies 18 with respect to inspection of vehicles used on the Exotic Car Tour, it did not itself 19 maintain, repair, or service vehicles. Instead, Bani Auto paid for and managed 20 the outsourcing of such services to third- party vendors. 21 Bani Opp. Decl. ¶ 8 22 23 24 The Court finds that paragraphs 5-8 of the Bani Opposition Declaration clearly and 25 unambiguously contradict Bani’s prior deposition testimony. In paragraphs 5-6, Bani denies any 26 involvement in selecting or inspecting the route for the Exotic Car Tour, which is contrary to his 27 prior deposition testimony that he selected and inspected the route. In paragraphs 7-8, Bani denies 1 maintenance of the Ferrari, which is contrary to his prior deposition testimony that he attended 2 weekly operations meetings regarding vehicles, and attended a September 2016 operations 3 meeting at which the tread on the right rear tire of the Ferrari would have been discussed. The 4 Court makes a factual finding that paragraphs 5-8 of the Bani Opposition Declaration are a sham. 5 United’s objection to paragraphs 5-8 of the Bani Opposition Declaration is SUSTAINED. 6 b. Zhang Sur-Reply Declaration (ECF 180-1) 7 United objects to the Zhang Sur-Reply Declaration “to the extent it includes argument and 8 exceeds the Court’s two-page limitation.” Pl.’s Sur-Reply at 1, ECF 181. The Court granted each 9 side leave to file a two-page sur-reply brief. The Court understands United to be arguing that the 10 Bani Defendants improperly have attempted to exceed that page limit by including argument in the 11 declaration of their counsel, Mr. Zhang. The Zhang Sur-Reply Declaration consists primarily of 12 factual statements regarding the events giving rise to this lawsuit, and statements authenticating 13 documents attached to the declaration. 14 United’s objection to the Zhang Sur-Reply Declaration is OVERRULED. 15 2. Bani Defendants’ Evidentiary Objections 16 The Bani Defendants object to United’s Errata regarding its motion for summary 17 judgment, and to the declaration and deposition statements of Robert Bergsten, who represented 18 the Bani Defendants in the underlying Wright action. 19 a. United’s Errata Re its Motion for Summary Judgment 20 The Bani Defendants object to an errata filed by United, correcting the omission of several 21 documents from the exhibits to the Declaration of Douglas A. Greer. See Pl.’s Errata, ECF 166. 22 United also submitted a corrected motion brief to conform to the corrections to the Greer 23 Declaration. See id. The Bani Defendants argue that the errata, addition of the previously omitted 24 documents, and corrected motion brief should be disregarded as untimely. However, the Court 25 finds that during the course of the lengthy briefing process on the parties’ cross-motions for 26 summary judgment, and the extensive oral argument presented to the Court during the hearing on 27 the cross-motions, the Bani Defendants had ample opportunity to present all relevant arguments. 1 errata, and in the exercise of its discretion will accept the previously omitted documents and 2 corrected motion brief. 3 Bani’s objection to United’s errata is OVERRULED. 4 b. Bergsten Declaration 5 The Bani Defendants object to consideration of the declaration of Robert Bergsten, 6 a partner at the law firm Hosp, Gilbert and Bergsten, which was the firm retained by United to 7 serve as defense counsel for the Bani Defendants in the Wright action. The Bergsten Declaration 8 is submitted with United’s reply in support of its own motion, and with its opposition to the Bani 9 Defendants’ motion. See Bergsten Decl., ECF 167-3, ECF 171. The Bani Defendants contend 10 that the Bergsten Declaration constitutes new reply evidence that should not be considered in 11 connection with United’s motion for summary judgment, and that it should be disregarded 12 altogether because it was not disclosed in discovery. 13 Mr. Bergsten states in his declaration that when he represented the Bani Defendants, he 14 “analyzed the potential damages a jury might award the Wright family claimants should they 15 succeed at trial of their claims.” Bergsten Decl. ¶ 3. In his opinion, economic damages for David 16 Wright’s death would exceed $1,000,000 based on the family’s loss of his future earnings. See 17 Bergsten Decl. ¶ 4. That economic damages figure was based on the facts that David Wright was 18 a married man in his 40s with four children, who made approximately $170,000 per year. See id. 19 Mr. Bergsten estimated that total economic and non-economic damages could be $13,000,000 to 20 $15,000,000. See id. He believed that all three Bani Defendants faced exposure because they 21 could be held jointly and severally liable for the claims asserted in the Wright action. See id. 22 The Court addressed the Bani Defendants’ objections to the Bergsten Declaration at the 23 hearing, and resolved them by allowing the Bani Defendants to depose Mr. Bergsten and 24 permitting each side to file a sur-reply addressing Mr. Bergsten’s statements. At his deposition, 25 Mr. Bergsten testified that while the Wright action was pending, his firm sent Bani a number of 26 status reports estimating that the economic damages resulting from David Wright’s death – 27 damages for the loss of his financial support – were approximately $3,700,000. See Bergsten Dep. 1 $1,000,000 to $2,000,000. See id. Mr. Bergsten stated that Bani was sent those status reports on 2 June 1, 2018; July 6, 2018; January 21, 2019; March 8, 2019; and May 28, 2019. See id. 3 The Bani Defendants now ask the Court to disregard Mr. Bergsten’s deposition and 4 declaration statements on the ground that he is a biased and unreliable witness, pointing to 5 portions of his deposition in which he stated that he has worked with United on hundreds of cases 6 over the years, and generally does insurance defense work. The Bani Defendants assert that Mr. 7 Bergsten is so beholden to United, and so reliant on case assignments from United, that he is in 8 effect in the bag for United and cannot be trusted. 9 The Bani Defendants offer no evidence to dispute Mr. Bergsten’s deposition testimony 10 that, during litigation of the underlying Wright action, his firm sent Bani multiple status reports 11 estimating economic damages to be approximately $3,700,000. The Bani Defendants likewise 12 offer no evidence to refute that estimate. Finally, the Bani Defendants offer no evidence that Mr. 13 Bergsten has any kind of bias that would affect the credibility of his statements here. The Court 14 finds that the Bani Defendants’ unsubstantiated and ad hominem attack on Mr. Bergsten is 15 meritless. 16 The Bani Defendants’ objection to the declaration and deposition testimony of Mr. 17 Bergsten is OVERRULED. 18 C. United’s Motion for Summary Judgment (ECF 164) 19 United seeks summary judgment against the Bani Defendants, jointly and severally, for 20 reimbursement of the $1,000,000 it paid to settle Wright action. Following the guidance of the 21 Ninth Circuit in its remand order, this Court first discusses the two leading California cases on 22 allocation, LA Sound and Axis Surplus. Applying those cases, this Court next considers whether 23 United has demonstrated that the $1,000,000 settlement should be allocated 100% to each of the 24 insureds, resulting in summary judgment against the Bani Defendants jointly and severally for 25 reimbursement of the settlement amount. 26 1. California Law on Allocation 27 In LA Sound, an insurer paid $1,000,000 to settle a trademark infringement suit against an 1 reservation of rights. See LA Sound, 156 Cal. App. 4th 1259, 1263-65 (2007). The insurer did not 2 settle other claims against the officers arising from conduct outside their official capacities. See 3 id. at 1265. The corporation and officers sued the insurer for breach of the duties to defend and 4 indemnify, and also for bad faith. See id. The insurer cross-claimed, seeking rescission of the 5 policy due to misrepresentations in the application, and reimbursement of the costs incurred 6 defending and settling the underlying suit. See id. A jury found for the insurer on the claims 7 against it, and the trial court found for the insurer on its affirmative equitable claims of rescission 8 and reimbursement. See id. at 1266. The trial court entered judgment against the three insureds 9 jointly and severally for reimbursement of defense and settlement costs. See id. 10 The Court of Appeal affirmed the trial court’s rescission of the policy and determination 11 that the insurer was entitled to recover the costs of defense and settlement. See LA Sound, 156 12 Cal. App. 4th at 1271. However, the appellate court held that the insurer had failed to establish 13 that the two officers were jointly and severally liable with the corporation for the entire amount of 14 the defense and settlement costs. See id. The LA Sound court made clear that an insurer seeking 15 reimbursement bears the “burden of showing which costs can be allocated to the defense or 16 indemnity of each particular insured.” Id. at 1272-73. The appellate court emphasized that the 17 right to reimbursement runs only against a person who benefits from the settlement, and “only to 18 the extent the person actually benefits.” Id. at 1273. 19 In the trademark action before it, the Court of Appeal “[d]ecline[d] to assume that every 20 dollar [the insurer] spent on the underlying action benefited all three insureds.” LA Sound, 156 21 Cal. App. 4th at 1273. The LA Sound court explained that whether that was true depended on “a 22 detailed analysis of how the indemnity costs were spent – did the insureds face the same amount 23 of liability, and was their liability settled on identical terms?” Id. Because the insurer had not 24 engaged in such an analysis with respect to the corporation and its two officers, the appellate court 25 remanded the matter for a new trial, limited to the issue of the amount owed by the insured 26 corporation and each of the officers as restitution of the respective benefits received by each under 27 the rescinded policy. See id. at 1274. 1 LA Sound in an insurer’s suit for recovery of defense and settlement costs against three insureds – 2 Linda and Edgar Reinoso, a married couple, and their property management company – with 3 respect to claims for negligence, other tort claims, and other state law claims (“the Tenant 4 Action”). See Axis Surplus, 208 Cal. App. 4th 181. The trial court awarded the insurer more than 5 $2,000,000 in settlement costs for claims in the Tenant Action that were not covered by the 6 policies. See id. at 188. The trial court did not specify that the award was joint and several, but 7 the parties assumed on appeal that it was. See id. 8 On appeal, Linda argued that the trial court erred in finding her jointly and severally liable 9 for the settlement cost rather than allocating the settlement cost among the three insureds based on 10 the amount attributable to each. See Axis Surplus, 208 Cal. App. 4th at 191. Linda relied on the 11 testimony of a representative of the insured who stated that in making the settlement payment, he 12 did not consider Linda’s exposure in the underlying Tenant Action and did not allocate any of the 13 settlement proceeds to her. See id. at 192. In evaluating that argument, the Axis Surplus court 14 reiterated LA Sound’s holding that the insurer’s right to reimbursement runs against a person who 15 benefits from the insurer’s expenditures, but “only to the extent the person actually benefits.” Id. 16 at 195 (quoting LA Sound, 156 Cal. App. 4th at 1273). “That benefit,” the Axis Surplus court 17 found, “is the benefit of eliminating potential liability and not the time or costs expended on any 18 particular person or entity being defended.” Axis Surplus, 208 Cal. App. 4th at 195 (emphasis 19 added). 20 The Court of Appeal held that the trial court made an implied finding of an allocation, 21 which was Linda’s joint and several obligation to reimburse the insurer for the full amount of the 22 settlement cost. See Axis Surplus, 208 Cal. App. 4th at 195. The appellate court found substantial 23 evidence to support that implied finding of allocation, including evidence that Linda “was jointly 24 and severally liable for any tort committed by Edgar,” and “should be jointly and severally liable 25 under the causes of action against her in the Tenant Action.” See id. The Axis Surplus court 26 distinguished LA Sound, a trademark case, noting that “the court in LA Sound did not assume there 27 was joint and several liability” and in fact “said that it was ‘implausible’ that the ‘two individuals 1 and severally liable for any torts, the appellate court held that her resulting exposure to millions of 2 dollars in liability supported a conclusion that “Linda received the full benefit of the settlement.” 3 Id. at 196. Under those circumstances, the Axis Surplus court held, “Linda had a sufficient benefit 4 from the settlement such that not to allocate to her joint and several liability to the insurer of the 5 full amount paid by the insurer to settle the Tenant Action would amount to unjust enrichment.” 6 Id. at 195. 7 2. Allocation of United’s $1,000,000 Settlement in the Present Case 8 Applying the principles of LA Sound and Axis Surplus in the present case, this Court must 9 determine whether United has established that it is proper to allocate the full settlement amount to 10 each of the Bani Defendants, such that they may be adjudged jointly and severally liable for 11 reimbursement of the settlement cost. United advances two theories for allocation of the full 12 settlement amount to each of the Bani Defendants. First, United argues that Bani faced potential 13 multi-million-dollar liability as a joint tortfeasor in the underlying Wright action, such that he 14 received the full benefit of the settlement for the $1,000,000 policy limit. Second, United argues 15 that Bani is liable for the reimbursement obligations of Bani Auto and Club Sportive on the 16 ground that he was an alter ego of both entities. 17 a. Joint Tortfeasor 18 Under LA Sound and Axis Surplus, an insurer seeking to recoup a settlement paid under a 19 reservation of rights must show not only that the insured benefitted from the settlement, but also 20 the extent of that benefit. See Axis Surplus, 208 Cal. App. 4th at 195 (insurer’s right to 21 reimbursement runs “against the person who benefits from ‘unjust enrichment,’” but “only to the 22 extent the person actually benefits”) (citation omitted); LA Sound, 156 Cal. App. 4th at 1273 23 (same). Where there are multiple insureds, allocation of 100% of the settlement to an insured is 24 warranted only if that insured “had a sufficient benefit from the settlement such that not to allocate 25 to [the insured] joint and several liability to the insurer of the full amount paid by the insurer to 26 settle the [action] would amount to unjust enrichment.” Axis Surplus, 208 Cal. App. 4th at 195-96. 27 The Court first addresses United’s evidence that Bani received a benefit from the 1 support allocation to Bani of the full amount of the settlement. 2 i. Bani Benefitted from the Settlement 3 As the party moving for summary judgment, United has the initial burden to show that 4 Bani benefitted from the settlement. United points to the pleadings in the Wright action as 5 evidence that Bani faced potential liability in that action as a joint tortfeasor. See Greer Decl. Ex. 6 1 (SAC in Wright I); Ex. 4 (Compl. in Wright II). The Wright action included negligence claims 7 against all three insureds, Bani, Bani Auto, and Club Sportiva. See Greer Decl. Ex. 1 (SAC in 8 Wright I); Ex. 4 (Compl. in Wright II). The Wright plaintiffs alleged two negligence theories 9 against the insureds – their alleged negligence in inspecting and selecting the course for the Exotic 10 Car Tour, and their alleged negligence in failing to maintain the Ferrari vehicle despite knowledge 11 that the right rear tire was in need of replacement. See Greer Decl. Ex. 1 (SAC in Wright I); Ex. 4 12 (Compl. in Wright II). 13 Under California law, a corporate officer may be liable in his personal capacity if he 14 “specifically authorized, directed or participated in the allegedly tortious conduct,” or “specifically 15 knew or reasonably should have known that some hazardous condition or activity under their 16 control could injure plaintiff, [but] they negligently failed to take or order appropriate action to 17 avoid the harm.” Frances T. v. Vill. Green Owners Assn., 42 Cal. 3d 490, 508 (1986). The 18 plaintiff must also prove that an ordinarily prudent person, knowing what the officer knew at that 19 time, would not have acted similarly under the circumstances. See id. at 509. 20 During the course of litigating the underlying action, the Wright plaintiffs developed 21 evidence to support their negligence claims against Bani based on his direct participation in the 22 allegedly tortious conduct. Among that evidence was Bani’s deposition testimony that he 23 personally selected the Exotic Car Tour route driven by David Wright, and personally attended an 24 operations meeting the day before the accident at which the condition of the Ferrari’s right rear tire 25 was discussed. See Greer Decl. Ex. 2 (Bani Dep.) 14:24-15:1, 19:23-21:14, 44:1-20. A jury 26 determination that Bani was negligent in selecting the route or failing to remedy a defect in the 27 right rear tire would have rendered him jointly and severally liable for all economic damages 1 death. See Schreiber v. Lee, 47 Cal. App. 5th 745, 753 (2020). 2 United points out that the Bani Defendants’ own counsel in the underlying action believed 3 that all three insureds faced exposure, because they could be held jointly and severally liable for 4 the claims asserted therein. See Bergsten Decl. ¶ 4 (“Such an award would have included 5 economic damages in excess of $1,000,000 based on the family’s loss of David’s future earnings 6 for which my three clients would be jointly and severally liable if they were found to be 1% 7 responsible.”). 8 United’s evidence is sufficient to establish that Bani faced potential liability for negligence 9 in the underlying Wright action, and thus that United’s settlement of the action conferred on Bani 10 “the benefit of eliminating potential liability” for the negligence claims asserted against him. Axis 11 Surplus, 208 Cal. App. 4th at 195 (emphasis added). The Court finds that United has satisfied its 12 initial burden to show that Bani received a benefit from the settlement. The burden shifts to Bani 13 to submit evidence sufficient to create a factual dispute as to whether he benefitted from the 14 settlement. 15 The Bani Defendants assert that Bani did not benefit from the settlement because he faced 16 no exposure in the underlying action and would have been completely absolved of any 17 wrongdoing had the Wright case not settled. They submit several pieces of evidence in support of 18 that assertion, including: Bani’s declaration statements that he did not inspect or select the Exotic 19 Car Tour route and did not know about any potential defect in the Ferrari vehicle’s tire, see Bani 20 Opp. Decl. ¶¶ 5-8; a letter from the Bani Defendants’ defense counsel in the Wright action, 21 asserting that Bani could not be found personally liable because he acted only as a corporate 22 officer, see Defs.’ Ex. 9 (Letter), ECF 169-1; and a California Highway Patrol report stating that 23 David Wright was at fault in the accident because he was driving the car in an unsafe manner, see 24 Defs.’ Ex. 3. For reasons discussed above, the Court has sustained United’s objection to the cited 25 paragraphs of the Bani Opposition Declaration. The Court observes that the letter from the Bani 26 Defendants’ defense counsel predates Bani’s deposition testimony admitting his personal 27 involvement in selecting the Exotic Car Tour route and attending the operations meeting, and thus 1 Decl. Ex. 2 (Bani Dep.), dated July 11, 2018. The California Highway Patrol report is admissible 2 under the doctrine of judicial notice, as discussed above. 3 The Bani Defendants’ arguments and evidence regarding what would have happened if the 4 Wright case had not settled are beside the point. Neither the Bani Defendants, nor United, nor this 5 Court can predict with any degree of certainty what the outcome of the underlying action would 6 have been had it continued to be litigated. The relevant issue is whether the claims asserted in 7 Wright exposed Bani to potential liability. The answer is yes, and the benefit Bani obtained from 8 the settlement was the elimination of that potential liability. 9 Nothing in LA Sound or Axis Surplus suggests that an insurer must prove the actual 10 liability of the insured to show the insured benefitted from a settlement. In LA Sound, the Court of 11 Appeal made clear that the key questions to be answered in allocating the cost of settlement were 12 “did the insureds face the same amount of liability, and was their liability settled on identical 13 terms?” LA Sound, 156 Cal.App.4th at 1273 (emphasis added). In Axis Surplus, the court found 14 that Linda benefitted from the settlement because she was “[f]aced with exposure” that the 15 settlement eliminated. Axis Surplus, 208 Cal. App. 4th at 196 (emphasis added). In the present 16 case, Bani benefitted from the settlement because he faced exposure to personal liability on the 17 negligence claims alleged in Wright, and that exposure was eliminated by the settlement. 18 The Court finds that United has met is initial burden to show that Bani benefitted from the 19 settlement, and the Bani Defendants have failed to show the existence of a material issue of fact on 20 the issue of benefit. 21 ii. Extent to which Bani Benefitted from the Settlement 22 United must show not only that Bani obtained a benefit from the settlement, but that he 23 obtained a sufficient benefit to warrant allocating 100% of the settlement to him. United contends 24 that Bani faced potential multi-million-dollar liability as a joint tortfeasor in the underlying Wright 25 action and therefore received the full benefit of the $1,000,000 settlement paid by United. 26 United submits evidence that any award of economic damages in the Wright action would 27 have been substantial and in excess of the $1,000,000 policy limit. In particular, United points to 1 was the firm retained by United to serve as defense counsel for the Bani Defendants in the Wright 2 action. See Bergsten Decl., ECF 167-3. Mr. Bergsten states that at the time of death, David 3 Wright was a 42-year-old, happily married father of four children who made approximately 4 $170,000 per year. See id. ¶ 4. Mr. Bergsten opines that given those facts, economic damages 5 would have exceeded $1,000,000 based on the family’s loss of future earnings. See id. As 6 discussed above, under California law Bani faced exposure to joint and several liability for 7 economic damages flowing from David Wright’s death. 8 Mr. Bergsten’s deposition was taken after the hearing on the parties’ current cross- 9 motions. See Bergsten Dep., ECF 180. Mr. Bergsten testified that during the Wright action, his 10 firm sent Bani several status reports estimating economic damages resulting from the family’s loss 11 of financial support to be approximately $3,700,000. See Bergsten Dep. 41:2-60:23. The reports 12 estimated that non-economic damages could be an additional $1,000,000 to $2,000,000. See id. 13 Mr. Bergsten testified that Bani was sent those status reports on June 1, 2018; July 6, 2018; 14 January 21, 2019; March 8, 2019; and May 28, 2019. See id. 15 This evidence is sufficient to show that Bani faced potential personal liability, as a joint 16 tortfeasor in the underlying Wright action, of at least $3,7000,000 in economic damages resulting 17 from David Wright’s death. Based on a similar finding of Linda’s potential personal liability as a 18 joint tortfeasor, the Axis Surplus court determined that “[f]aced with exposure of many millions of 19 dollars . . . Linda received the full benefit of the settlement.” Axis Surplus, 208 Cal. App. 4th at 20 196. This Court likewise finds that United has shown that Bani received the full benefit of the 21 settlement entered by United. The Axis Surplus court concluded that “Linda had a sufficient 22 benefit from the settlement such that not to allocate to her joint and several liability to the insurer 23 of the full amount paid by the insurer to settle the Tenant Action would amount to unjust 24 enrichment.” Id. at 195. This Court likewise finds that United has shown that Bani had sufficient 25 benefit from the $1,000,000 settlement paid by United such that not to allocate to him joint and 26 several liability for the full settlement would amount to unjust enrichment. 27 Based on the foregoing, the Court finds that United has met its initial burden on summary 1 be jointly and severally liable for reimbursement of the settlement along with Bani Auto and Club 2 Sportiva. The burden shifts to the Bani Defendants to show the existence of a material issue of 3 fact on the issue of allocation. 4 The Bani Defendants argue that United has not met its burden to show that 100% of the 5 settlement cost may be allocated to Bani, because United has not engaged in the detailed analysis 6 regarding allocation contemplated by LA Sound. The Bani Defendants ignore the factual 7 differences between this case, in which the underlying action included negligence claims, and LA 8 Sound, in which the underlying action was a trademark case. The court in LA Sound did not 9 assume there was joint and several liability among the insureds, and in fact found it implausible 10 that the two individual insureds faced the same liability. See LA Sound, 156 Cal.App.4th at 1273. 11 The Axis Surplus court distinguished LA Sound on the ground that in the case before it, Linda 12 faced joint and several liability for any asserted torts. See Axis Surplus, 208 Cal. App. 4th at 196. 13 The Axis Surplus court held that Linda’s resulting exposure of millions of dollars supported a 14 conclusion that “Linda received the full benefit of the settlement.” Id. at 196. Under the same 15 reasoning, this Court finds that United has met its burden to show that Bani received the full 16 benefit of the settlement entered by United. 17 Next, the Bani Defendants argue that there are discrepancies between Mr. Bergsten’s 18 declaration and his deposition testimony regarding the extent of liability faced by Bani in the 19 Wright action. Those arguments focus on Mr. Bergsten’s estimates regarding non-economic 20 damages. The Bani Defendants have not challenged Mr. Bergsten’s statements regarding David 21 Wright’s income or calculation of economic damages based on the loss of his income to the 22 family. The evidence regarding economic damages that could have been awarded by a jury is 23 sufficient to show that Bani faced exposure to liability well in excess of the $1,000,000 policy 24 limit. The Court therefore need not consider evidence regarding non-economic damages. 25 The Court finds that United has met its initial burden on summary judgment to show that 26 Bani received the full benefit of the $1,000,000 settlement, and that not to allocate to him joint and 27 several liability for the full settlement would amount to unjust enrichment. The Bani Defendants 1 Accordingly, United’s motion for summary judgment is GRANTED. As another district 2 court in this circuit has held, “where an insurer contributes $1 million to a settlement that 3 extinguishes the multi-million-dollar liability faced by each of the three insureds, it is equitable to 4 obtain reimbursement of the entire $ 1 million from any of the insureds – for each received a 5 benefit from that settlement payment of far more than $1 million.” Mesa Underwriters Specialty 6 Ins. Co. v. Allergan, Inc., 604 F. Supp. 3d 935, 942 (C.D. Cal. 2022). 7 b. Alter Ego 8 United’s second theory of joint and several liability for repayment of the settlement is that 9 Bani was the alter ego of Bani Auto and Club Sportiva. Bani Auto and Club Sportiva did not 10 appeal the finding of liability against them, jointly and severally, for reimbursement of the 11 $1,000,000 settlement paid by United. However, United states that Bani Auto and Club Sportiva 12 have indicated that they lack assets from which reimbursement could be paid. United therefore 13 seeks to enforce the reimbursement obligations of Bani Auto and Club Sportiva against Bani 14 under an alter ego theory. 15 Under California law, there are two requirements to invoke the alter ego doctrine. See 16 Cam-Carson, LLC v. Carson Reclamation Auth., 82 Cal. App. 5th 535, 549 (2022). “First, there 17 must be such a unity of interest and ownership between the corporation and its equitable owner 18 that the separate personalities of the corporation and the shareholder do not in reality exist.” Id. 19 (internal quotation marks and citation omitted). “Second, there must be an inequitable result if the 20 acts in question are treated as those of the corporation alone.” Id. (internal quotation marks and 21 citation omitted). 22 With respect to the first requirement, unity of interest and ownership, the California courts 23 have identified “a variety of factors” that may be considered in determining whether the corporate 24 veil should be pierced. Associated Vendors, Inc. v. Oakland Meat Co., 210 Cal. App. 2d 825, 838- 25 40 (1962). Among the factors listed by Associated Vendors are: “Commingling of funds and 26 other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of 27 corporate funds or assets to other than corporate uses”; “the treatment by an individual of the 1 individual or the members of a family”; “the use of the same office or business location”; “the 2 failure to adequately capitalize a corporation”; “the total absence of corporate assets, and 3 undercapitalization”; and “the use of a corporation as a mere shell, instrumentality or conduit for a 4 single venture or the business of an individual or another corporation.” Id. The long list of factors 5 enumerated in Associated Vendors is not exhaustive; those factors may be considered among 6 others under the particular circumstances of each case. See Leek v. Cooper, 194 Cal. App. 4th 7 399, 417-18 (2011). United submits evidence that a number of the Associated Vendors factors are 8 met, primarily through the opinion of United’s forensic accounting expert, Victoria Wilkerson. 9 See Greer Decl. Ex. 11 (Wilkerson Report), ECF 166. 10 “With respect to the second requirement, it is sufficient that it appear that recognition of 11 the acts as those of a corporation only will produce inequitable results.” Associated Vendors, 210 12 Cal. App. 2d at 837. United submits evidence that Bani Auto and Club Sportiva have asserted a 13 lack of assets from which to reimburse United for the $1,000,000 settlement of the underlying 14 Wright action. See Greer Decl. Ex. 8 (Joint Statement Re Discovery Dispute), ECF 166. 15 The Court finds that United has met its initial burden on summary judgment to show that 16 both requirements to invoke the alter ego doctrine are satisfied. The burden shifts to the Bani 17 Defendants to show the existence of a material issue of fact on the issue of alter ego. 18 The Bani Defendants submit the opinion of their rebuttal forensic accounting expert, 19 Tiffany Tso, in support of their argument that the first requirement for alter ego – unity of interest 20 and ownership – is not satisfied here. See Defs.’ Ex. 4 (Tso Report), ECF 169-1. Ms. Tso 21 highlights several Associated Vendors factors that she asserts weigh against a finding of alter ego. 22 See id. She also addresses and rebuts Ms. Wilkerson’s opinion supporting a finding of alter ego. 23 See id. The conflicting reports of United’s expert, Ms. Wilkerson, and the Bani Defendants’ 24 expert, Ms. Tso, present a classic battle of the experts creating a triable issue of material fact as to 25 whether there is a unity of interest and ownership warranting a finding of alter ego. Accordingly, 26 United is not entitled to summary judgment based on its alter ego theory. 27 As discussed above, however, United is entitled to summary judgment based on its joint 1 D. Bani Defendants’ Motion for Partial Summary Judgment (ECF 162) 2 The Bani Defendants seek partial summary judgment on two issues, first that United 3 cannot produce evidence of its allocation of the $1,000,000 settlement, and second that Bani is not 4 jointly and severally liable for reimbursement of the settlement. 5 On the first issue, the Bani Defendants argue that there is an absence of evidence in the 6 record to support any allocation of the $1,000,000 settlement. To establish an absence of record 7 evidence, the Bani Defendants point to several of United’s discovery responses. See Defs.’ Exs. 8 A, B (Discovery Responses), ECF 162-1. None of the discovery responses establish United’s 9 inability to prove allocation. For example, in response to a request for admission that United 10 failed to establish the amount of indemnity benefits conferred on Bani in his individual capacity, 11 United responded, “Objection. Vague and ambiguous as this action is continuing. Without 12 waiving this objection, Responding Party denies this request.” See Defs.’ Ex. A (Discovery 13 Response), Response to RFA No. 11. Neither that response, nor any of the other cited discovery 14 response, are sufficient to meet Bani’s initial burden on summary judgment. 15 On the second issue, the Bani Defendants argue that Bani is not jointly and severally liable 16 for reimbursement of the settlement. The Bani Defendants contend that “there is still not a 17 scintilla of evidence of Bani’s individual liability or involvement as a joint tortfeasor outside his 18 capacity as officer or owner of Bani Auto and Club Sportiva.” Defs.’ Mot. at 5. The Bani 19 Defendants cite the Ninth Circuit’s appellate decision in this case, finding an absence of record 20 evidence to support an inference that Bani would be jointly and severally liable in the underlying 21 action as a joint tortfeasor or alter ego. While the Ninth Circuit did find an absence of evidence on 22 the record then before it, the parties have engaged in nearly two years of additional discovery 23 following remand. That discovery resulted in additional evidence going to Bani’s exposure to 24 personal liability for negligence, and the extent of his exposure, including the declaration 25 statements and deposition testimony of Mr. Bergsten. Mr. Bergsten’s statements and testimony 26 were not previously before this Court or the Ninth Circuit. Accordingly, the Bani Defendants’ 27 argument grounded in the prior record, before it was further developed after remand, not well- 1 The Court finds that the Bani Defendants have failed to meet their initial burden on 2 |} summary judgment with respect to United’s ability to establish allocation, or the imposition of 3 || joint and several liability against Bani for reimbursement of the $1,000,000 settlement. Indeed, 4 || the Court has determined that United is entitled to summary judgment for the reasons discussed 5 above. 6 Accordingly, the Bani Defendants’ motion for partial summary judgment is DENIED. 7 IV. ORDER 8 (1) Plaintiff United’s motion for summary judgment is GRANTED. 9 (2) Plaintiff United SHALL submit a proposed judgment consistent with this order on 10 or before October 6, 2025. 11 (3) The Bani Defendants’ motion for partial summary judgment is DENIED. 12 (4) This order terminates ECF 162, 164.

14 Dated: September 19, 2025

2 BETH LABSON FREEMAN 16 United States District Judge

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