NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRAVELERS PROPERTY CASUALTY No. 21-15862 COMPANY OF AMERICA, a Connecticut corporation, D.C. No. 3:20-cv-09443-VC

Plaintiff-Appellant,

MEMORANDUM*

v.

SALESFORCE.COM, INC., a Delaware corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Argued and Submitted December 4, 2023 San Francisco, California

Before: COLLINS, FORREST, and SUNG, Circuit Judges.

Plaintiff-Appellant Travelers Property Casualty Company of America

(Travelers) appeals the dismissal of this declaratory action brought against its

insured, Defendant-Appellee Salesforce.com, Inc. (Salesforce). After Salesforce

sold business software to Backpage.com, it was sued by multiple plaintiffs for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. violating Texas law by aiding a business that plaintiffs allege compelled them into

prostitution. The plaintiffs’ cases are pending in a multidistrict litigation (MDL) in

Texas.1 Salesforce seeks defense costs and indemnification related to the MDL under

its general commercial liability policy. After initially agreeing to defend Salesforce

under a reservation of rights, Travelers brought this action seeking declarations that:

(1) any duty to defend it owed Salesforce ceased when the MDL plaintiffs dropped

their negligence claims; (2) it is owed reimbursement of all defense costs that it paid

after the MDL plaintiffs dropped their negligence claims; and (3) it has no duty to

indemnify Salesforce in the MDL. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm the district court.

Interpretation of an insurance policy is a legal question that we review de

novo. Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 426 (9th Cir. 2011). We also

review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim. Sinclair v. City of Seattle, 61 F.4th 674, 678 (9th Cir. 2023). We

accept as true all well-pleaded allegations of material fact and construe them in favor

of the non-moving party, here Travelers. Id.

1 Salesforce’s unopposed motion requesting that we take judicial notice of court filings in the In re Jane Doe Cases Texas MDL proceedings at issue here [Dkt. 31] is granted. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”).

2 Under California law, which governs here, an insurer “must defend a suit

which potentially seeks damages within the coverage of the policy.” Gray v. Zurich

Ins. Co., 65 Cal. 2d 263, 275 (1966). The duty to defend is triggered if there is a

“bare ‘potential’ or ‘possibility’” that a third-party suit may result in liability for

covered damages. Montrose Chem. Corp. v. Superior Ct., 6 Cal. 4th 287, 300 (1993).

But “the insurer need not defend if the third party complaint can by no conceivable

theory raise a single issue which could bring it within the policy coverage.” Id.

(quoting Gray, 65 Cal. 2d at 276 n.15).

1. Salesforce’s policy covers third-party claims asserting “bodily injury”

and “personal . . . injury.” Coverage A provides that “[Travelers] will pay those

sums that the insured becomes legally obligated to pay as damages because of

‘bodily injury’ . . . to which this insurance applies” and “will have the right and duty

to defend the insured against any ‘suit’ seeking those damages.” “Bodily injury”

must be “caused by an ‘occurrence,’” which is defined as an “accident, including

continuous or repeated exposure to substantially the same general harmful

conditions.” The policy excludes “‘[b]odily injury’. . . expected or intended from the

standpoint of the insured.”

Coverage B provides that “[Travelers] will pay those sums that the insured

becomes legally obligated to pay as damages because of ‘personal . . . injury’ to

which this insurance applies” and “will have the right and duty to defend the insured

3 against any ‘suit’ seeking those damages.” “Personal injury” is defined as an “injury

other than ‘bodily injury,’ which can include [f]alse arrest, detention or

imprisonment.” The policy excludes coverage for “‘[p]ersonal injury’ . . . caused by

or at the direction of the insured with the knowledge that the act would violate the

rights of another and would inflict ‘personal injury.’”

Travelers agreed to defend Salesforce in the MDL, reserving its rights to seek

a declaration that the policy does not cover the MDL claims and to seek

reimbursement of all defense costs paid. Travelers contends that any duty to defend

it owed was extinguished when the MDL plaintiffs dropped their negligence claims

because their remaining claims asserted under the Texas Sex Trafficking Statutes do

not trigger coverage under Salesforce’s policy. It is Travelers’ burden to establish

that its duty to defend was extinguished. See Prichard v. Liberty Mut. Ins. Co., 84

Cal. App. 4th 890, 902 (2000), as modified on denial of reh’g (Dec. 6, 2000)

(“[W]here there was no question of an initial duty to defend, but there was a dispute

over whether . . . the duty to defend . . . terminated,” “the duty to defend continues

‘until the insurer proves otherwise.’” (quoting Hartford Accident & Indem. Co. v.

Superior Ct., 23 Cal. App. 4th 1774, 1781 (1994))).

Travelers argues that the Texas Sex Trafficking Statutes impose civil liability

only for intentional conduct that falls outside the scope of “bodily injury” arising

from an “accident.” “Accident” is an undefined term, and Travelers relies on the

4 California Supreme Court’s definition of “accident” as an “unexpected, unforeseen,

or undesigned happening or consequence from either a known or an unknown

cause,” Delgado v. Interinsurance Exch. of Auto. Club of S. Cal., 47 Cal. 4th 302,

308 (2009) (citation omitted), and argues that Salesforce can only be held liable in

the MDL for “inherently knowing or intentional actions, not actions that Salesforce

could have taken by accident.” We disagree. Texas’s statute permits victims to

recover damages from a defendant who “knowingly or intentionally engages in

promotion of prostitution, online promotion of prostitution, aggravated promotion

of prostitution, or aggravated online promotion of prostitution that results in

compelling prostitution with respect to the victim.”2 Tex. Civ. Prac. & Rem. Code §

98A.002(a)(2) (emphasis added).3 This statute plainly does not attach the intent

2 “A person commits an offense [of compelling prostitution] if the person knowingly (1) causes another by force, threat, coercion, or fraud to commit prostitution; (2) causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time of the offense; or (3) causes by any means a disabled individual . . . to commit prostitution, regardless of whether the actor knows the individual is disabled at the time of the offense.” Tex. Penal Code § 43.05(a); see Tex. Civ. Prac. & Rem. Code § 98A.001(4) (adopting the Penal Code definition). 3 The MDL plaintiffs asserted claims under both § 98A.002(a) and § 98.002(a). Because we hold that Travelers has a duty to defend Salesforce for potential liability arising under § 98A.002(a)(2), we do not address whether § 98.002(a)(2) also triggers Travelers’ duties under the policy. See Hartford Cas. Ins. Co. v. J.R. Mktg., LLC, 61 Cal. 4th 988, 997–98 (2015) (“[W]hen the third party suit includes some claims that are potentially covered, and some that are clearly outside the policy’s coverage, the law nonetheless implies the insurer’s duty to defend the entire action.”).

5 requirement to the result clause—“results in compelling prostitution with respect to

the victim.” Id.

The adverbs “knowingly or intentionally” modify the phrasal verb “engages

in” and its direct objects: “promotion of prostitution, online promotion of

prostitution, aggravated promotion of prostitution, [and] aggravated online

promotion of prostitution.” Cf. Rehaif v. United States, 588 U.S. 225, 229–30 (2019)

(“The term ‘knowingly’ in [the statute] modifies the verb ‘violates’ and its direct

object . . . . The proper interpretation of the statute thus turns on what it means for a

defendant to know that he has ‘violate[d]’ [the statute].” (third alteration in

original)). The subordinate result clause indicates the consequence of the phrasal

verb acting upon the direct object. That is, while a defendant must knowingly or

intentionally commit an act that promotes prostitution, the defendant need not have

known or intended that its actions would result in compelled prostitution.

Under California law, “accident” refers to “the conduct of the insured for

which liability is sought to be imposed.” Liberty Surplus Ins. Corp. v. Ledesma &

Meyer Constr. Co., 5 Cal. 5th 216, 221 (2018) (quoting Delgado, 47 Cal. 4th at 311).

An insured’s intentional act that results in unintended consequences may be

considered an accident when “some additional, unexpected, independent, and

unforeseen happening occurs that produces the damage.” Id. at 225 (quoting Merced

Mut. Ins. Co. v. Mendez, 213 Cal. App. 3d 41, 50 (1989)).

6 Here, Salesforce could potentially be held liable under Texas’s statute for

selling software to Backpage.com even though the harm being remedied by the

statute—compelled prostitution—would not have occurred absent an additional act

that was “unexpected, independent, and unforeseen” by Salesforce. It does not

automatically follow that selling business software, even to a business known to

promote prostitution, will result in victims being compelled into prostitution.

Because § 98A.002(a)(2) does not require proof that Salesforce intended or knew

that selling its business software to Backpage.com would “result[] in compelling

prostitution,” it is possible that Salesforce may be held liable for an “unexpected,

unforeseen, or undesigned happening or consequence” of its actions. Delgado, 47

Cal. 4th at 308 (citation omitted).

Travelers argues this is an improper reading of Texas’s statute because in In

re Facebook, Inc., 625 S.W.3d 80 (Tex. 2021), the Texas Supreme Court interpreted

“knowingly” as involving affirmative, overt conduct, id. at 96, and therefore “the

claims alleged against Salesforce . . . do not implicate conduct that is accidental[]

[because] they require proof of intentional wrongdoing.” Travelers overstates the

implications of In re Facebook. In that case, the Texas Supreme Court held that the

plaintiffs there were precluded by the Communications Decency Act, 47 U.S.C. §

230, from asserting negligence claims against Facebook based on allegations that

Facebook identified sex-trafficking targets, connected traffickers with those targets,

7 and encouraged traffickers to use its platforms to traffic victims. Id. at 93–96.

Nothing in In re Facebook precludes imposing liability under Texas’s statute for

intentionally or knowingly “promoting” prostitution where the defendant did not

also know or intend that its conduct would “result[] in compelling prostitution.” Tex.

Civ. Prac. & Rem. Code § 98A.002(a)(2).

Because the MDL plaintiffs’ § 98A.002(a)(2) claims may impose liability on

Salesforce that triggers coverage under its policy, Travelers’ duty to defend has not

been extinguished. See Montrose Chem. Corp., 6 Cal. 4th at 300.

2. Travelers also argues that it has no duty to defend because the policy

excludes coverage for “bodily injury” resulting from intended or expected acts, as

well as “personal injury” “caused by . . . the insured with the knowledge that the act

would violate the rights of another and would inflict ‘personal . . . injury.’” Under

California law, policy exclusions generally must be “interpreted narrowly against

the insurer.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1032 (9th

Cir. 2008) (citation omitted); see also Delgado, 47 Cal. 4th at 313 (explaining that

courts should exercise more caution in denying coverage based on exclusionary

clauses as opposed to finding a lack of coverage in the first instance based on an

affirmative coverage clause). The exclusion on which Travelers relies does not bar

coverage for the same reasons that the MDL plaintiffs’ statutory claims may trigger

affirmative coverage. See Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal. App.

8 4th 715, 747 (1993) (concluding that the phrase “expected or intended” precludes

coverage for damage that the insured subjectively intended to be a result of its

conduct, as well as damage that it in fact subjectively foresaw as practically certain

to be a result of its conduct). A plain reading of Texas’s sex-trafficking statute covers

more than conduct that a defendant knows or intends will result in compelled

prostitution.

3. Because we conclude that Travelers still has a duty to defend Salesforce

in the ongoing MDL, Travelers is not entitled to reimbursement of defense costs.

See Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076, 1081 (1993), as modified

on denial of reh’g (May 13, 1993) (“Once the defense duty attaches, the insurer is

obligated to defend against all of the claims involved in the action, both covered and

noncovered, until the insurer produces undeniable evidence supporting an allocation

of a specific portion of the defense costs to a noncovered claim.”). Nor is it entitled

to declaratory relief regarding its duty to indemnify at this point. Hartford Cas. Ins.,

59 Cal. 4th at 287 (“[T]he obligation to indemnify . . . is only determined when the

insured’s underlying liability is established.” (quoting Ringler Assocs. Inc. v. Md.

Casualty Co., 80 Cal. App. 4th 1165, 1185 (2000))).

AFFIRMED.

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