FILED

NOT FOR PUBLICATION

MAR 05 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FIRST ONE LENDING CORPORATION; No. 17-55492

JOHN VESCERA,

D.C. No. Plaintiffs-Appellants, 8:13-cv-01500-AG-DFM

v.

MEMORANDUM*

THE HARTFORD CASUALTY

INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted December 4, 2018 Pasadena, California

Before: O’SCANNLAIN and IKUTA, Circuit Judges, and KENNELLY,** District Judge.

First One Lending Corporation and John Vescera appeal a grant of summary

judgment in favor of Hartford Casualty Insurance Company that found a lawsuit

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. against the appellants uninsurable under their general liability insurance policy. A

district court’s grant of summary judgment is reviewed de novo. Sony Comp.

Entm’t Am. Inc. v. Am. Home Assurance Co., 532 F.3d 1007, 1011 (9th Cir. 2008).

We reverse.

First, the district court erred in granting Hartford’s motion for summary

judgment based on a statutory exception for willful conduct. Cal. Ins. Code § 533.

To determine whether an insurer owes its insured a duty to defend, we “compare

the allegations of the [underlying] complaint—and facts extrinsic to the

complaint—with the policy terms to see if they reveal a possibility that the claim

may be covered by the policy.” See Pension Tr. Fund for Operating Eng’rs v. Fed.

Ins. Co., 307 F.3d 944, 949 (9th Cir. 2002). Because at least the Lanham Act

trademark infringement claim in the underlying complaint against the appellants

did not require a showing of willfulness within the ambit of section 533 to impose

liability, there was a sufficient “potential for liability” to trigger the insurer’s broad

duty to defend under California law. See Horace Mann Ins. Co. v. Barbara B., 4

Cal. 4th 1076, 1084, 846 P.2d 792, 797 (1993); see also Unified W. Grocers, Inc.

v. Twin City Fire Ins. Co., 457 F.3d 1106, 1111-12 (9th Cir. 2006); Brookfield

Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1059 (9th Cir. 1999).

Nor was every claim in the complaint so “inseparably intertwined” with willful

2 conduct as to render the entire action uninsurable. See Unified W. Grocers, 457

F.3d at 1114.

Second, the district court erred in granting summary judgment on the basis

of the financial services exclusion. “[I]nterpreted narrowly against the insurer,” as

the exclusion must be under California law, see Manzarek v. St. Paul Fire &

Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008), the express exclusion for

claims “resulting from the rendering of or the failure to render financial services”

does not capture all the claims in the underlying complaint because at least some of

those claims bore an insufficient causal nexus with financial services.

In sum, Hartford failed to demonstrate that these exclusions apply to all of

the claims alleged against First One and Vescera “in all possible worlds,” Atlantic

Mut. Ins. Co. v. J. Lamb, Inc., 100 Cal. App. 4th 1017, 1039 (2003), and it thus

failed to demonstrate that it had no duty to defend the action. See Horace Mann, 4

Cal. 4th at 1084, 846 P.2d at 797; Montrose Chem. Corp. v. Superior Court, 6 Cal.

4th 287, 299, 861 P.2d 1153, 1160 (1993) (“Any doubt as to whether the facts

establish the existence of the defense duty must be resolved in the insured’s

favor.”); Manzarek, 519 F.3d at 1031 (“[I]f any of the claims in the underlying

complaint are covered the insurer has a duty to defend the entire action.”); see also

Hudson Ins. Co. v. Colony Ins. Co., 624 F.3d 1264, 1267 (9th Cir. 2010) (“ Where

3 there is doubt as to whether the duty to defend exists, the doubt should be resolved

in favor of the insured against the insurer.” (internal quotation marks omitted)).

Hartford’s alternative arguments that NACA’s claims fell either outside the

insurance policy’s coverage provisions or within the policy’s intellectual property

exclusion must also fail. Because there is a potential for coverage under the

affirmative coverage provisions and Hartford did not conclusively demonstrate that

the intellectual property exclusion applied, see Atlantic Mut. Ins. Co. v. J. Lamb,

Inc., 100 Cal. App. 4th at 1039; Manzarek, 519 F.3d at 1031, the district court’s

holdings on these two issues were sound.

REVERSED and REMANDED.

4

FILED

First One Lending Corp. v. Hartford Casualty Insurance Co., 17-55492

MAR 05 2019

IKUTA, Circuit Judge, dissenting:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I would affirm the district court on two grounds. First, each claim in the

underlying complaint was inseparably intertwined with willful conduct. See

Unified W. Grocers, Inc. v. Twin City Fire Ins. Co., 457 F.3d 1106, 1114 (9th Cir.

2006). Based on the allegations in the underlying complaint, any conduct on the

part of the defendants that could be characterized as merely negligent standing

alone was “so closely related to intentional misconduct as to be inseparable from

it.” State Farm Gen. Ins. Co. v. Mintarsih, 175 Cal. App. 4th 274, 288 (2009).

Therefore, the entire action was uninsurable under Cal. Ins. Code § 533.

Second, as an element of its trademark infringement and unfair competition

claims, NACA alleged reputational harm and loss of goodwill that were caused by

the defendants’ false claims of association with NACA in conjunction with their

failure to render (or negligent rendering of) the advertised financial services.

Because the policy’s financial services exclusion precluded coverage for injuries

resulting from “the rendering of or the failure to render financial services” to

others, these claims were not covered by the policy. See Horace Mann Ins. Co. v.

Barbara B., 4 Cal. 4th 1076, 1081 (1993).