NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PREMIER POOLS MANAGEMENT No. 18-16551

CORP.,

D.C. No. 2:13-cv-02038-JAM-EFB Plaintiff-Appellant,

v. MEMORANDUM*

COLONY INSURANCE CO.,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted July 15, 2020** San Francisco, California

Before: SILER,*** TALLMAN, and LEE, Circuit Judges.

Premier Pools Management Corporation (“PPMC”) appeals a district court

order granting summary judgment in favor of Colony Insurance Company

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. (“Colony”), holding that the “law of the case” doctrine did not prevent the court

from determining whether Colony owed a duty to defend PPMC in a trademark

infringement lawsuit; finding that Colony owed PPMC no duty to defend; and

dismissing PPMC’s claims for indemnity, bad faith, and punitive damages. We

have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Street Surfing,

LLC v. Great Am. E & S Ins. Co., 776 F.3d 603, 607 (9th Cir. 2014), we affirm.

The district court properly rejected PPMC’s argument that our prior opinion,

from a prior appeal in the same litigation, precluded the district court from

determining whether Colony owed PPMC a duty to defend. Our prior opinion

makes clear that we previously decided a single, narrow issue: whether PPMC was

an insured party, and therefore had standing to sue for coverage, under the relevant

Colony policies. Because we did not consider and decide the separate, broader

issue of whether Colony owed PPMC a duty to defend, there was no “law of the

case” on that issue, and the district court was free to decide it. See Mortimer v.

Baca, 594 F.3d 714, 720–21 (9th Cir. 2010).

The district court, on the merits, also correctly rejected PPMC’s argument

that the underlying trademark infringement lawsuit triggered Colony’s duty to

defend PPMC for “personal and advertising injury” caused by PPMC’s alleged

disparagement, use of another’s “advertising idea,” and use of another’s “slogan.”

PPMC failed to tender the amended complaint containing the relevant, new

2 18-16551 disparagement allegations, so Colony owed no duty to investigate those allegations

or to defend PPMC against them, as a matter of law. See Travelers Cas. & Sur.

Co. v. Emp’rs Ins. of Wausau, 29 Cal. Rptr. 3d 609, 616 (Cal. Ct. App. 2005).

And the plaintiff in the trademark infringement lawsuit accused PPMC of

infringing the company name “Premier Pools,” which the plaintiff repeatedly

characterized as a trademark—the infringement of which the Colony policies do

not cover—and not an “advertising idea” or a “slogan.” “Premier Pools” is not an

“advertising idea” or a “slogan” as a matter of California law. See, e.g., Hyundai

Motor Am. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 600 F.3d 1092, 1100

(9th Cir. 2010) (applying California law) (“[T]he proper test is whether the patents

at issue involve any process or invention which could reasonably be considered an

advertising idea.” (emphasis added) (internal quotation marks omitted)); Street

Surfing, 776 F.3d at 608–09 (applying California law) (concluding that a “slogan”

is “a brief attention-getting phrase,” and lack of allegations otherwise suggesting

that “Street Surfer” was a slogan foreclosed duty to defend for slogan

infringement). The district court thus correctly granted summary judgment in

favor of Colony.

Because Colony owed PPMC no duty to defend, PPMC’s indemnity and

bad-faith claims fail as a matter of law. See Collin v. Am. Empire Ins. Co., 26 Cal.

Rptr. 2d 391, 399 (Cal. Ct. App. 1994) (“[W]hile an insurer has a duty to defend

3 18-16551 suits which potentially seek covered damages, it has a duty to indemnify only

where a judgment has been entered on a theory which is actually (not potentially)

covered by the policy.”); Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 639 (Cal.

1995) (“[A] bad faith claim cannot be maintained unless policy benefits are due[.]”

(quoting Love v. Fire Ins. Exch., 271 Cal. Rptr. 246, 256 (Cal. Ct. App. 1990))).

PPMC’s punitive damages claim fails as well: other than alleging bad faith, PPMC

does not explain how Colony acted fraudulently, oppressively, or maliciously. See

Cal. Civ. Code § 3294. The district court correctly dismissed all three claims.

Costs are awarded to Colony Insurance Company.

AFFIRMED.

4 18-16551