Anderson v. Certain Underwriters at Lloyd's Under Policy No. B0146LDUSA0701030

MEMORANDUM

Henry Anderson and other plaintiffs, collectively “Anderson,” were assigned ePlanning’s rights against Brit UW Limited (“Brit”). Anderson alleges that Brit breached its contract with ePlanning and its duty of good faith and fair dealing under California law by refusing to defend ePlanning and to settle Anderson’s claims. The district court dismissed Anderson’s first amended complaint with prejudice. Anderson appeals. We review de novo, Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir.2012) (en banc), and affirm.

1. In this diversity suit, we apply California law. To prevail on his claim for breach of the duty to defend, Anderson need not prove coverage existed. Instead, Anderson must prove only “the possibility of coverage at the time the claim is raised.” Food Pro Int’l, Inc. v. Farmers Ins. Exch., 169 Cal.App.4th 976, 992 , 89 Cal.Rptr.3d 1 (2008).

2. The district court determined that no coverage existed, because the policy’s “Partial Professional Services Exclusion” barred all of Anderson’s claims. This exclusion provided that Brit was not liable for any claim under the policy “for any act, error or omission in connection with the performance of any…