1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ZINDY CORP., Case No. 23-cv-03893-AMO

8 Plaintiff,

ORDER GRANTING DEFENDANT’S

9 v. MOTION FOR SUMMARY

JUDGMENT

10 ADMIRAL INSURANCE COMPANY, Re: Dkt. No. 24 Defendant. 11

12 13 This is an insurance coverage dispute arising out of a physical altercation at Plaintiff Zindy 14 Corp.’s (“Zindy”) Walnut Creek bar. Defendant Admiral Insurance Company’s (“Admiral”) 15 motion for summary judgment was heard before this Court on October 30, 2024. Having read the 16 papers filed by the parties and carefully considered their arguments therein and those made at the 17 hearing, as well as the relevant legal authority, the Court hereby GRANTS Admiral’s motion, for 18 the following reasons. 19 I. BACKGROUND 20 A. The Policy 21 Admiral issued a Commercial General Liability policy to “Zindy Corp. DBA Dan’s Bar” 22 with policy number CA000022631-06 and effective dates of October 15, 2020, to October 15, 23 2021 (“the Policy”). Maniscalco Decl., Ex. A (ECF 24-2 at 5-86). The Policy states in relevant 24 part as follows:

25 SECTION I - COVERAGES

COVERAGE A - BODILY INJURY AND PROPERTY

26 DAMAGE LIABILITY 1. Insuring Agreement 27 a. We will pay those sums that the insured becomes legally obligated defend the insured against any “suit” seeking those damages. 1 However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to 2 which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may 3 result . . . 4 Maniscalco Decl., Ex. A at 21. The Policy provides as follows for Supplementary Payments under 5 Coverages A and B:

6 SUPPLEMENTARY PAYMENTS — COVERAGES A AND B 1. We will pay, with respect to any claim we investigate or settle, or 7 any “suit” against an insured we defend: a. All expenses we incur. 8 . . .

9 These payments will not reduce the limits of insurance. Maniscalco Decl., Ex. A at 28. The Policy includes the following 10 relevant definitions:

SECTION V - DEFINITIONS

11 . . .

12 3. “Bodily injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. 13 . . .

14 18. “Suit” means a civil proceeding in which damages because of “bodily injury”, “property damage” or “personal and advertising 15 injury” to which this insurance applies are alleged . . . .

16 Maniscalco Decl., Ex. A at 32, 33, and 35. 17 The Policy also includes an Assault & Battery Event Limited Coverage Endorsement (“the 18 Endorsement”), which excludes from coverage injuries “actually or allegedly arising out of, 19 related to, caused by, contributed to by, or in any way connected with” battery but then adds 20 limited coverage for an “assault or battery event” (as defined by the Policy below). The 21 Endorsement provides: 22

COMMERCIAL GENERAL LIABILITY COVERAGE FORM

23 LIQUOR LIABILITY COVERAGE FORM

24 Schedule Sub-Limits of Insurance: 25 $25,000 Each Event (Included in the Each Occurrence Limit shown in the Declarations) 26 $50,000 Aggregate (Included in the General Aggregate Limit shown in the Declarations) 27 The Sub-Limits of Insurance shown above are included within and Supplementary Payments will reduce the Each Event and Aggregate 1 Sub-Limits of Insurance shown above.

2 A. Except to the extent coverage is afforded under COVERAGE D below, this insurance does not apply to “bodily injury”, “property 3 damage”, “personal and advertising injury”, “injury” or damages of any kind, including costs or expenses, actually or allegedly arising 4 out of, related to, caused by, contributed to by, or in any way connected with: 5 1. The actual, alleged or threatened assault or battery by anyone of any person while on or adjacent to the premises of any insured; or 6 2. The actual, alleged or threatened assault or battery by anyone of any person if in any way connected with the operations of any 7 insured; or 3. The negligent employment, negligent investigation, negligent 8 supervision, negligent reporting to the proper authorities or failure to so report, negligent retention or negligent hiring by any insured or 9 any person or entity for whom any insured is or ever was legally responsible in claims alleging actual, alleged or threatened assault or 10 battery by anyone of any person; or 4. The failure of any insured or any person or entity for whom any 11 insured is or ever was legally responsible to prevent, suppress, mitigate or respond to actual, alleged or threatened assault or battery 12 by anyone of any person; or 5. The failure of any insured or any person or entity for whom any 13 insured is or ever was legally responsible to provide an environment safe from assault or battery, or to warn of the dangers of the 14 environment which could lead to or contribute to assault or battery; or 15 6. The assumption of tort liability of another by any insured in any contract or agreement, including an “insured contract”, if the claim 16 arises out of Paragraphs 1 through 5 above.

17 . . .

18 COVERAGE D - ASSAULT OR BATTERY EVENT LIABILITY 1. Insuring Agreement 19 a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” caused by an 20 “assault or battery event” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” 21 seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” 22 caused by an “assault or battery event” to which this insurance does not apply. We may, at our discretion, investigate any “assault or 23 battery event” and settle any claim or “suit” that may result. But: (1) The amount we will pay for damages is limited as described in 24 Paragraph 3. Sub-Limits of Insurance below; and (2) Our right and duty to defend ends when we have used up the 25 applicable sub-limit of insurance in the payment of judgments, settlements or Supplementary Payments under the insurance 26 provided by this endorsement. No other obligation or liability to pay sums or perform acts or 27 services is covered. 2. Exclusions 1 All exclusions applicable to COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY and to LIQUOR 2 LIABILITY COVERAGE also apply to the insurance provided by this endorsement. 3 3. Sub-Limits of Insurance 4 a. The Assault or Battery Sub-Limits of Insurance shown above and the rules below fix the most we will pay regardless of the number of: 5 (1) Insureds; (2) Claims made or “suits” brought; or 6 (3) Persons or organizations making claims or bringing “suits”.

7 b. The Aggregate Sub-Limit shown above is the most we will pay for all “bodily injury” and Supplementary Payments as a result of all 8 “assault or battery events”, regardless of the number of Coverage Forms made part of this policy. 9 c. Subject to the Aggregate Sub-Limit shown above, the Each Event 10 Sub-Limit is the most we will pay for all “bodily injury” sustained by any one or more persons or organizations as the result of an 11 “assault or battery event”, regardless of the number of Coverage Forms made part of this policy. Supplementary Payments reduce the 12 Each Event Sub-Limit.

13 4. Who Is An Insured a. With respect to insurance provided by this endorsement, 14 SECTION II - WHO IS AN INSURED does not include any person who actually committed the “assault or battery event”, aided and 15 abetted others in the commission of the “assault or battery event”, or directed, encouraged or coerced others to commit the “assault or 16 battery event”.

17 5. Definition a. “Assault or battery event” means any act that includes physical 18 assault or physical battery committed against an individual person by anyone. More than one “assault or battery event” committed 19 against the same person will be deemed to be a single “assault or battery event”. 20 21 Maniscalco Decl., Ex. A at 70-72. 22 B. The Incident 23 On September 4, 2021, Mirko Jovanovic was a patron at Dan’s Bar in Walnut Creek. 24 Bauman Decl., Ex. B at 35:5-36:3. A bartender stopped serving Jovanovic because he appeared 25 intoxicated, and he was escorted out of the bar. Bauman Decl., Ex. C at 10:8-24. Jovanovic 26 attempted to re-enter the bar on multiple instances that evening, with varying success – he would 27 be removed again at least once. Id., Ex. C at 11:26-12:18. 1 Jovanovic attempted to re-enter the bar shortly after midnight when he was intercepted by 2 a bouncer at the bar, Christopher Maydahl. Bauman Decl., Ex. D at 52:21-55:13. As Maydahl 3 tried to physically prevent Jovanovic from entering, Jovanovic’s elbow swung towards Maydahl. 4 Id.1 Dante Sims, another bouncer for the bar who was not working that evening, observed the 5 struggle with Jovanovic and approached to assist Maydahl. Bauman Decl., Ex. C at 62:2-63:5. 6 While Maydahl restrained Jovanovic from behind, Sims applied a “C clamp chokehold” (a two- 7 handed stranglehold) to Jovanovic, who lost consciousness. Id.; see also Bauman Decl., Ex. D at 8 52:21-55:13. When Jovanovic lost consciousness, Sims and Maydahl dropped him to the ground, 9 and his head struck the ground, leading to severe injuries. Bauman Decl., Ex. B at 27:13-16, Ex. E 10 at 8-9. Jovanovic was transported from the scene in an ambulance, admitted to a local hospital, 11 and remained in a coma for several days. Bauman Decl., Ex. B at 7:14, 8:5-19, 36:23-37:24. 12 Jovanovic was hospitalized for a total of 22 days after the assault and diagnosed with a 13 traumatic brain injury that resulted in impairments to his vision, hearing, speech, memory, and 14 balance. Bauman Decl., Ex. F. The head injury that he sustained during the assault caused 15 impingement of his facial nerves that has resulted in partial paralysis of the left side of his face, 16 exhibited a by left-sided facial droop. Id. 17 The Contra Costa County District Attorney’s Office charged Sims and Maydahl with 18 battery for their roles in the incident. Compl., Ex. C at 76-85. The criminal prosecution 19 proceeded to a trial in March 2023, and the jury acquitted both Sims and Maydahl. Id. 20 C. Zindy’s Claim to Admiral 21 On September 7, 2021, Jovanovic’s attorney wrote a letter to Zindy placing it on notice of 22 potential litigation arising out of the incident. Maniscalco Decl., Ex. G. On September 8, 2021, 23 four days after the incident, Zindy notified Admiral of the claim, which Admiral acknowledged 24 the next day. Maniscalco Decl., Ex. H. On September 10, 2021, Admiral sent a reservation of 25 rights letter informing Zindy that it believed the Endorsement applied to the claim because it 26 involved 27 1 an injury that arises out of, related to, caused by, contributed by or in any way connected with an actual, alleged assault or battery by 2 anyone of any person while on or adjacent to your premises of any insured. This includes an injury that is in any way connected with 3 your operations of any insured and also the negligent employment, negligent supervision for whom any insured is legally responsible in 4 claims that allege assault or battery. 5 Maniscalco Decl., Ex. I at 4. Additionally, Admiral informed Zindy that the Endorsement’s 6 $25,000 sublimit of coverage would be “eroded by any incurred expenses.” Id. at 5. On October 7 1, 2021, Admiral sent a second reservation of rights letter to Zindy reiterating that the 8 Endorsement applied to the claim and that the $25,000 would be eroded by expenses. Maniscalco 9 Decl. at Ex. J at 6. 10 Jovanovic filed suit against Zindy on April 7, 2022, in Contra Costa Superior Court. 11 Maniscalco Decl., Ex. M; see also Compl., Ex. B (ECF 1-1 at 63-72). On May 11, 2022, Zindy 12 informed Admiral of the underlying lawsuit, which Admiral acknowledged on May 12, 2022. 13 Maniscalco Decl., Ex. N at 4-6. 14 On May 16, 2022, Admiral sent another reservation of rights letter to Zindy, once again 15 explaining that the Endorsement applied and that Admiral would investigate and defend the claim 16 up to the eroding $25,000 sublimit. Maniscalco Decl., Ex. O at 1, 7. Admiral also informed 17 Zindy that the remaining sublimit was then $22,191.94. Id. at 7. On May 20, 2022, Admiral 18 assigned counsel to defend Zindy in the underlying lawsuit and informed Zindy of the assignment. 19 Maniscalco Decl., Ex. N at 1-2. 20 Jovanovic’s complaint (“the underlying complaint”) names Zindy, Maydahl, and Sims as 21 defendants and seeks damages for injuries that Jovanovic sustained as a result of the assault and 22 battery incident. Maniscalco Decl., Ex. M at 5. The underlying complaint alleges three causes of 23 action: negligence, negligent hiring and supervision, and battery. Id. 24 The underlying complaint’s first cause of action is negligence against all three defendants, 25 alleging that Maydahl and Sims worked as Zindy’s agents in the course and scope of their agency 26 at the time of the altercation. Maniscalco Decl., Ex. M ¶¶ 4, 9. The negligence cause of action 27 further alleges that all defendants owed Jovanovic a duty as a patron of Zindy’s bar and that they 1 around his neck, head and other parts of his body. which rendered [Jovanovic] unconscious. 2 Defendants, and each of them, then released [Jovanovic] while he was unconscious, and 3 [Jovanovic] fell to the ground.” Id. ¶10. Further, the underlying complaint alleges that Zindy 4 permitted this “contact.” Id. ¶ 11. Jovanovic alleges that the altercation caused his injuries and 5 damages. Id. ¶¶ 13, 15-17. 6 The second cause of action is negligent hiring and supervision against only Zindy, but it 7 incorporates all prior allegations. Maniscalco Decl., Ex. M ¶ 18. This cause of action alleges that 8 Zindy acted negligently in hiring, training, and supervising the bouncers, that Zindy should have 9 known of their propensity to use excessive physical force, and that Zindy’s actions caused 10 Jovanovic’s injuries and damages. Id. ¶¶ 19-22, 24-26. 11 The third cause of action is battery against Maydahl and Sims, which also incorporates all 12 prior allegations. Id. ¶ 27. Jovanovic alleges that the two bouncers “intentionally, willfully, and 13 wantonly touched [him] with the intent to harm and/or offend him.” Id. ¶ 28. Jovanovic alleges 14 that the bouncers’ actions caused his injuries and damages. Id. ¶¶ 29-30, 32-34.2 15 The underlying lawsuit is still in the discovery phase, and the court has not set a trial date. 16 Bauman Decl., Ex. P at 2. Zindy exhausted the Endorsement’s sublimit as it has incurred $25,000 17 in defense costs. Maniscalco Decl. ¶ 14. 18 D. This Action 19 Zindy filed the Complaint in this lawsuit on June 23, 2023, in Contra Costa Superior 20 Court, and Admiral timely removed the action to this Court. Compl. (ECF 1-1). Zindy’s 21 Complaint asserts three causes of action against Zindy: (1) breach of contract, (2) breach of the 22 implied covenant of good faith and fair dealing, and (3) declaratory relief. Id. Zindy’s allegations 23 of breach of contract and breach of the implied covenant of good faith and fair dealing share the 24 same operative factual allegations: 25 26 27 1 • Zindy asserts that the underlying complaint’s negligence cause of action is not subject to 2 the Endorsement’s sublimit and that Admiral thus breached the Policy by imposing the 3 sublimit on the defense of the underlying case as a whole. Compl. ¶ 9. 4 • Zindy alleges that Admiral engaged in bad faith because it did not address caselaw that 5 Zindy’s counsel cited in a letter to Admiral on May 5, 2023, in which Zindy argued that 6 Admiral’s defense obligation to Zindy was not subject to the Endorsement’s sublimit. 7 Compl. ¶ 10, Ex. C. 8 • Zindy alleges that Admiral’s response to Zindy’s May 5, 2023, letter, which cited and 9 applied controlling California caselaw interpreting assault and battery endorsements, was 10 made in bad faith because these cases are “clearly distinguishable.” Compl. ¶¶10-11, Ex. 11 D. 12 • Zindy alleges that the caselaw cited by Admiral is “clearly distinguishable” because the 13 operative complaints in those cases pled their negligence causes of actions after their 14 battery causes of action, incorporated allegations that were commonly pled with the battery 15 causes of action, or both. Compl. ¶¶ 12-15, Exs. E, F, and G. 16 Zindy’s second cause of action for breach of the implied covenant of good faith and fair 17 dealing further alleges that Admiral “acted despicably, willfully, wantonly, oppressively, 18 fraudulently and/or in conscious disregard of the rights of Plaintiff.” Compl. ¶ 24. Zindy’s third 19 cause of action seeks a declaration of the parties’ respective rights pursuant to the Policy. Compl. 20 ¶¶ 26-31. 21 II. DISCUSSION 22 Admiral moves for summary judgment on all Zindy’s causes of action. A party may move 23 for summary judgment on a “claim or defense” or “part of . . . a claim or defense.” Fed. R. Civ. P. 24 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact 25 and the moving party is entitled to judgment as a matter of law. Id. The party seeking summary 26 judgment bears the initial burden of informing the court of the basis for its motion, and of 27 identifying those portions of the pleadings and discovery responses that demonstrate the absence 1 facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 2 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence 3 for a reasonable jury to return a verdict for the nonmoving party. Id. 4 When deciding a summary judgment motion, a court must view the evidence in the light 5 most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson, 6 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). The court’s 7 function on a summary judgment motion is not to make credibility determinations or weigh 8 conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v. Pac. 9 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 10 Where the moving party will have the burden of proof at trial, it must affirmatively 11 demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun 12 v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving 13 party will bear the burden of proof at trial, the moving party may carry its initial burden of 14 production by submitting admissible “evidence negating an essential element of the nonmoving 15 party’s case,” or by showing, “after suitable discovery,” that the “nonmoving party does not have 16 enough evidence of an essential element of its claim or defense to carry its ultimate burden of 17 persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1105- 18 06 (9th Cir. 2000); see also Celotex, 477 U.S. at 324-25 (moving party can prevail merely by 19 pointing out to the district court that there is an absence of evidence to support the nonmoving 20 party’s case). Indeed, where the nonmoving party bears the burden of proof at trial, its burden of 21 production in opposing a motion for summary judgment “ ‘is not a light one’ – it ‘must show more 22 than the mere existence of a scintilla of evidence’ or ‘some “metaphysical doubt” as to the 23 material facts at issue.’ ” Pac. Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 24 893, 897 (9th Cir. 2021) (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 25 2010)). 26 At its core, this is a dispute about insurance policy coverage. The interpretation of an 27 insurance policy is governed by state law. Humboldt Bank v. Gulf Ins. Co., 323 F. Supp. 2d 1027, 1 question of law to be determined by the court if there is no genuine issue of material fact. See 2 Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1150 (9th Cir. 1998) (“based on the undisputed, 3 material (i.e., outcome-determinative) facts, liability arising out of the attempted robbery and 4 battery was not the result of an ‘occurrence’ and that Blue Ridge has no duty to indemnify the 5 Estate”); see also Sprinkles v. Associated Indem. Corp., 188 Cal. App. 4th 69, 76 (2010) (stating 6 that the interpretation of an insurance policy’s exclusion is a question of law). 7 In determining whether an insured’s claim gives rise to a duty to defend under an insurance 8 policy, courts are guided by the principle “that interpretation of an insurance policy is a question 9 of law.” Waller, 11 Cal. 4th at 18. “Under statutory rules of contract interpretation, the mutual 10 intention of the parties at the time the contract is formed governs interpretation.” AIU Ins. Co. v. 11 Superior Court, 51 Cal.3d 807, 821-22 (1990) (citation omitted). In determining this intent, courts 12 “look first to the language of the contract in order to ascertain its plain meaning or the meaning a 13 layperson would ordinarily attach to it.” Waller, 11 Cal. 4th at 18. The “clear and explicit” 14 language of the policy is considered and interpreted in its “ordinary and popular sense,” unless 15 “used by the parties in a technical sense or a special meaning is given to them by usage.” AIU, 51 16 Cal. 3d at 822. Courts “interpret the language in context, with regard to its intended function in 17 the policy.” Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1256 (1992). 18 California law additionally provides that “[t]he duty to defend is determined by reference 19 to the policy, the complaint, and all facts known to the insurer from any source.” Zelda, Inc. v. 20 Northland Ins. Co., 56 Cal. App. 4th 1252, 1261 (1997) (citing Montrose Chem. Corp. v. Superior 21 Court, 6 Cal. 4th 287, 300 (1993) (emphasis in original)). “For an insurer, the existence of a duty 22 to defend turns not upon the ultimate adjudication of coverage under its policy of insurance, but 23 upon those facts known by the insurer at the inception of a third party lawsuit.” Montrose Chem. 24 Corp., 6 Cal. 4th at 295 (citations omitted). In other words, “the duty to defend runs to claims that 25 are merely potentially covered, in light of facts alleged or otherwise disclosed.” State Farm Gen. 26 Ins. Co. v. Phillips, 591 F. Supp. 3d 680, 686 (C.D. Cal. 2022) (quotation and citation omitted). 27 An insurer’s “duty to defend, although broad, is not unlimited; it is measured by the nature 1 (1995). In determining whether a duty to defend exists, courts must start by comparing “the 2 allegations of the complaint with the terms of the policy.” Id. at 19. But “[i]t has long been a 3 fundamental rule of law that an insurer has a duty to defend an insured if it becomes aware of . . . 4 facts giving rise to the potential for coverage under the insuring agreement.” Id. at 19. Therefore, 5 any “[f]acts extrinsic to the complaint give rise to a duty to defend when they reveal a possibility 6 that the claim may be covered by the policy.” Id. at 19. Generally, this duty is assessed “at the 7 time of the tender of the defense.” B & E Convalescent Ctr. v. State Comp. Ins. Fund, 8 Cal. App. 8 4th 78, 92 (1992). 9 Zindy argues that the motion should be denied because there exists a dispute of fact 10 regarding the physical contact between Jovanovic and the bouncers. Moreover, Zindy contends 11 that any evidence that Admiral has offered to support its theory that Zindy’s bouncers “choked 12 out” Jovanovic is inadmissible and that Zindy has somehow raised an issue of triable fact as to 13 whether the Endorsement applies to the underlying lawsuit.3 Opp. at 14. Zindy avers that the 14 particular facts of the event should have influenced Admiral’s coverage decision, including its 15 duty to defend. Opp. at 15. Zindy misses the mark. 16 The exact movements and severity of the bouncers’ conduct and whether Zindy’s bouncers 17 in fact “choked out” Jovanovic are immaterial to Admiral’s coverage assessment. Indeed, the 18 factual proof in support of the purported assault, the nuances of whether the bouncers intended to 19 cause harm to Jovanovic, and even the acquittal of the bouncers for assault all prove irrelevant to 20 the analysis of Admiral’s coverage assessment. 21 Crucially, it is the allegations in the underlying complaint that form the basis of the 22 insured’s claims for coverage. The complaint underlying Zindy’s claim for coverage alleges that 23 Jovanovic sustained his injuries as a result of “contact” between Jovanovic and the bouncers that 24

25 3 Zindy objects to the materials submitted by Admiral in support of its motion as hearsay and/or unauthenticated. See ECF 26-5. The Court OVERRULES Zindy’s objections as procedurally 26 defective because objections “must be contained within the brief or memorandum,” not filed separately as Zindy does here. Civ. L.R. 7-3(a). Even if Zindy had complied with the Local 27 Rules, the Court would overrule the objections because the materials proffered by Admiral are not 1 he creatively describes as a “negligent[ ] and careless[ ] embrace[ ] . . . around his neck, head and 2 other parts of his body, which rendered [him] unconscious.” Maniscalco Decl., Ex. M ¶¶ 10-11. 3 Reading the underlying complaint as a whole, Jovanovic’s alleged injuries occurred because of the 4 “contact” between him and the bouncers, which he describes in his battery cause of action as 5 intentional, willful, and wanton touching with the intent to harm him. Id. ¶¶ 11, 28. Indeed, the 6 contact between Jovanovic and the bouncers plainly represents an “alleged assault and battery” 7 that triggered the Endorsement where the bouncers faced criminal prosecution for assault. See 8 Zindy RJN, Ex. 1. The allegations in the underlying complaint – along with the undisputed fact 9 that the bouncers were criminally prosecuted for alleged acts of assault – make clear that the 10 underlying complaint against Zindy arises out of, is related to, or is connected to the bouncers’ 11 alleged assault or battery of Jovanovic. Whether and when Jovanovic allegedly swung an elbow at 12 Maydahl is immaterial to interpretation of the Policy provision’s broadly-phrased limitation on 13 coverage arising from such an event. Zindy’s attempt to inject a factual dispute is unrelated to 14 whether Admiral breached the Policy by limiting its coverage under the Endorsement. 15 The Endorsement limits coverage for “bodily injuries . . . or damages of any kind” 16 “actually or allegedly arising out of, related to, caused by, contributed to by, or in any way 17 connected with” an assault or battery that occurs on or adjacent to the Zindy’s premises; in any 18 way connected to Zindy’s operations; or Zindy’s or its bouncers’ alleged failure to “prevent, 19 suppress, mitigate or respond to actual, alleged or threatened assault or battery by anyone of any 20 person.” Maniscalco Decl., Ex. A at 70-71. That language plainly applies here, where the 21 complaint underlying Zindy’s claim for coverage alleges that Jovanovic sustained his injuries as a 22 result of “contact” between Jovanovic and the bouncers that he creatively describes as a 23 “negligent[ ] and careless[ ] embrace[ ] . . . around his neck, head and other parts of his body, 24 which rendered [him] unconscious.” Maniscalco Decl., Ex. M ¶¶ 10-11. Reading the underlying 25 complaint as a whole, Jovanovic’s alleged injuries occurred because of the “contact” between him 26 and the bouncers, which he describes in his battery cause of action as intentional, willful, and 27 wanton touching with the intent to harm him. Id. ¶¶ 11, 28. Jovanovic sustained his injuries when 1 D at 52:21-55:13 (criminal trial transcripts). In other words, his injuries, his resulting lawsuit, and 2 Zindy’s claim under the Policy all arose out of an alleged battery. 3 Zindy seeks to evade the Endorsement’s application to Jovanovic’s garden-variety 4 negligence cause of action because it appears first in his complaint and does not incorporate the 5 third cause of action for assault and battery.4 Zindy’s creative argument lacks any legal support. 6 The cases that apply an assault and battery endorsement in an insurance policy do not attach any 7 significance to the location of a negligence cause of action in the structure of a complaint or its 8 incorporation of paragraphs describing an assault or battery. See, e.g., Northfield Ins. Co. v. 9 Sandy’s Place, LLC, 530 F. Supp. 3d 952, 957 (E.D. Cal. 2021); Mt. Vernon Fire Ins. Corp. v. 10 Oxnard Hosp. Enter., Inc., 219 Cal. App. 4th 876, 879 (2013); Century Transit Sys., Inc. v. Am. 11 Empire Surplus Lines Ins. Co., 42 Cal. App. 4th 121, 124 (1996). Moreover, this argument 12 regarding the ordering of claims in a pleading ignores the reality within California law that 13 “claims do not exist in the ether, they consist of pleaded allegations coupled with extrinsic facts. 14 That is what defines the insurer’s coverage duties, not the label chosen by the pleader.” Uhrich v. 15 State Farm Fire & Cas. Co., 109 Cal. App. 4th 598, 611 (2003), as modified on denial of reh’g 16 (July 9, 2003). Zindy’s argument that its claim for coverage arises from Jovanovic’s negligence 17 cause of action simply fails, as several courts have discounted this exact argument and held that 18 assault and battery exclusions like the one at issue apply to negligence claims arising from the 19 same event as an alleged battery. See, e.g., Northfield Ins. Co., 530 F. Supp. 3d at 964. Indeed, 20 Zindy apparently acknowledges that interpretation of policy exclusions requires review not of the 21 intentionality behind a tortious act nor the exact claim pleaded to trigger coverage, conceding that 22 assault and battery exclusion “language places the focus not upon the insured’s conduct or intent, 23 but rather upon the type of event in which plaintiff was injured.” Opp. at 20 (quoting Century 24 Transit Sys., 42 Cal. App. 4th at 126). 25

26 4 Jovanovic dismissed his third cause of action for battery against the bouncers on May 22, 2024, twelve days after Admiral moved for summary judgment and two days before Zindy filed its 27 Response. See Zindy RJN, Ex. 2 (ECF 26-4 at 12-16). Zindy cites this dismissal as a basis to 1 The underlying complaint’s allegations of negligence against Zindy are undoubtedly 2 || “arising out of, related to, caused by, contributed to by, or in any way connected with” the 3 “harmful physical contact” between Jovanovic and the bouncers as well as Zindy’s failure to 4 || prevent that contact. Accordingly, the Endorsement applies to Zindy’s claim, and Admiral’s 5 coverage is limited to $25,000. Zindy offers no dispute that it exhausted the Endorsement’s 6 sublimit because it has incurred $25,000 in defense costs. Maniscalco Decl. 4 14. Therefore, 7 || Admiral fulfilled its obligations under the terms of the Policy, and Zindy’s claim for breach of 8 || contract fails as a matter of law. 9 || I. CONCLUSION 10 For the foregoing reasons, the Court hereby GRANTS Defendant Admiral Insurance 11 Company’s motion for summary judgment. a 12 IT IS SO ORDERED.

13 || Dated: December 2, 2024

14 15

ARACELI MARTINEZ-OLGUIN

a 16 United States District Judge

it

4 18 19 20 21 22 23 24 25 26 > Under California law, “without a breach of the insurance contract, there can be no breach of the implied covenant of good faith and fair dealing.” Manzarek v. St. Paul Fire & Marine Ins. Co., 97 || 519 F.3d 1025, 1034 (9th Cir. 2008) (citing Waller, 11 Cal. 4th 1, (1995)). Here, because the Court finds that Zindy’s breach of contract claim fails, Zindy’s claim for breach of the implied 2g || covenant of good faith and fair dealing must also fail. The same result follows for Zindy’s third cause of action for declaratory relief based on the alleged breach.