INTRODUCTION

The plaintiff Government Employees Insurance Company ("GEICO") brought this declaratory-relief action to determine whether its insurance policy -- issued to the defendants Anshuman and Renuka Nadkarni, who are former landlords facing a state-court wrongful-eviction lawsuit brought by their former tenants -- requires it to defend and indemnify the Nadkarnis. 1 The defendants move for judgment on the pleadings under *920 Federal Rule of Civil Procedure 12(c) on the ground that GEICO has a duty to defend it as a matter of law, and GEICO counters that under the policy, it has no duty to defend or indemnify. 2 The court denies the defendants' motion for judgment on the pleadings.

STATEMENT

1. The Insurance Policy

On May 9, 2018, GEICO issued Personal Umbrella Policy number P8345980 to the defendants for the policy period May 8, 2018 to May 8, 2019, "which was cancelled effective December 28, 2018" (hereinafter the "GEICO policy" or "policy"). 3 The policy limit was "$1 million above the minimum required underlying limit of primary liability insurance in the amount of $300,000, and also subject to a 'retained limit' of $500." 4

"Under the terms of the GEICO policy, GEICO promises to pay 'damages' on behalf of an 'insured' arising out of an 'occurrence,' 5 subject to the terms and conditions of this policy." 6 The policy defines "damages" (in relevant part) as the " 'the total of: damages an "insured" must pay (1) legally; or (2) by agreement with "our" written consent; because of "personal injury" or "property" damage covered by this policy.' " 7 Under the "Conditions" section of the policy, the policy " 'applies to "personal injury" or "property damage" which takes place anywhere during the time this policy is in force, provided that suit is brought in the United States, its territories and possessions, or Canada.' " 8 The policy's definition of "personal injury" includes "wrongful eviction." The excerpt of the policy is as follows:

*921 Under the policy, " Property damage means physical injury or destruction of tangible property. This includes the loss of use caused by the injury or destruction. Property damage does not include the loss of money, notes, stock, bonds, or similar instruments, computer data or intellectual property." 10

In the section titled "Defense of Suits Not Covered by Other Insurance," the policy states in relevant part, "[i]f the required 'primary insurance' [ ] is in force but does not cover 'personal injury' or 'property damage' due to the nature of the claim against 'you', and this policy does provide coverage, 'we' will provide defense of suits in excess of the 'retained limit'." 11

2. The State Unlawful-Eviction Lawsuit

In 2017, the defendants bought a residential property that was rented to tenants, who had lived there since 2008 and who had a written lease with the previous owner through April 21, 2018. 12 On March 13, 2018, the defendants served the tenants with a "60 Day Notice of Termination of Tenancy," which " 'provided that [the Nadkarni defendants] would be moving into the Subject Unit and that [the third-party claimants] must vacate.' " 13 According to the state complaint, the former tenants vacated the unit on April 21, 2018. 14 In November 2018, three former tenants sued the defendants for wrongful eviction on the ground that the defendants never moved into the property within three months (and did not thereafter stay for three years or offer it back to the tenants), which was the legal ground that allowed eviction. 15

The operative state complaint was filed on February 28, 2019, and has the following claims: (1) negligence (by demanding that the tenants vacate the property for an owner move-in and failing to move in) (resulting in serious emotional distress, property damage, property loss, loss of a rent-controlled apartment, and moving costs); (2) wrongful eviction in violation of the San Francisco Rent Ordinance (resulting in the same damages); (3) breach of the covenant of quiet enjoyment (resulting in the loss of a rent-controlled apartment, property damage, property loss, moving costs, and attorney's fees and costs); (4) intentional infliction of emotional distress (resulting in severe emotional distress, mental injury, moving costs, and lose of use and enjoyment of the rental home); (5) a violation of section 37.11A of the San Francisco Rent ordinance by not filing required documents (such as a statement of occupancy within 90 days and updated statements every 90 days thereafter, the notice to vacate, and the notice of termination of tenancy) and by failing to move into the property (resulting in loss of enjoyment of a rent-controlled unit, property damage, property loss, mental injury, emotional distress, statutory damages and penalties, attorney's fees, and litigation costs); (6) unfair *922 business practices in violation of Cal. Bus. & Code Prof. § 17200 by (essentially) the wrongful eviction and the failure to file the documents in violation of the Rent Ordinance, resulting in illegal profits; and (8) as to one former tenant, financial elder abuse warranting punitive damages. 16

3. Tender by the Defendants; Coverage Investigation; Response to Tender

On November 12, 2018, defendant Renuka Nadkarni (on behalf of all of the defendants), tendered the summons and complaint from the state unlawful-eviction action to GEICO for a defense and indemnity under the GEICO policy and advised (in an email) that "(1) 'On 16th March [2018] a letter of Eviction was sent to the tenant with 60 days termination notice'; and (2) 'We took possession of the unit starting May [2018]'." 17

GEICO conducted a coverage investigation, which the complaint synopsizes as follows. 18

On December 4, 2018, GEICO declined the defendants' tender of the state complaint for a defense and indemnity. 20 On December 8, 2018, the defendants disputed GEICO's position and asserted that GEICO must accept the tender of defense because the "wrongful eviction" occurred in August 2019 (after the expiration of the 90-day period for either an owner move-in or an offer back to the tenants) and thus was during the policy period. 21

On January 15, 2019, GEICO responded that it would provide a "defense ... in the state action via independent counsel subject to a full reservation of rights under the terms of the GEICO [policy] and the law.... Among the specific rights reserved by GEICO ... in the letter were:

On January 24, 2019, the defendants proposed that GEICO withdraw its reservation of rights regarding GEICO's defense obligations in exchange for the defendants' "waiver of any right to independent counsel under Civil Code section 2860." 23 GEICO declined the proposal. 24

On February 4, 2019, GEICO responded to the defendants' contention that the eviction became unlawful only in August (after the 90-day period expired) and asserted that the "act or offense" covered by the "personal injury" policy provision was the defendants' original "dispossession of the third-party claimants/[tenants] from the premises, which took place prior to the inception of coverage under the GEICO policy [on May 8, 2018]." 25 On February 27, 2019, the defendants responded and "reiterated the same argument made in [their] December 8, 2018 correspondence that the eviction only became 'unlawful' 90 days after the original notice of eviction *924 [meaning, in August 2018, during the policy period]." 26

4. Other Relevant Procedural History

GEICO filed its initial complaint on March 11, 2019 and an amended complaint on April 5, 2019. 27 The defendants moved for judgment on the pleadings on May 14, 2019 and answered the amended complaint on June 21, 2019. 28 All parties consented to magistrate-judge jurisdiction. 29

GOVERNING LAW

1. Rule 12(c) Motion for Judgment on the Pleadings

"After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "[T]he same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog," because the motions are "functionally identical." Dworkin v. Hustler Magazine, Inc. , 867 F.2d 1188 , 1192 (9th Cir. 1989). A Rule 12(c) motion may thus be predicated on wither (1) the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696 , 699 (9th Cir. 1990). When considering a motion to dismiss under Rule 12(c), the court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922 , 925 (9th Cir. 2009). "A judgment on the pleadings is proper if, taking all of [plaintiff]'s allegations in its pleadings as true, [defendant] is entitled to judgment as a matter of law." Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181 , 1185 (9th Cir. 2010).

Although a court generally is confined to the pleadings on a Rule 12(c) motion, "[a] court may, however, consider certain materials - documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice - without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie , 342 F.3d 903 , 908 (9th Cir. 2003) ; In re Silicon Graphics Inc. Sec. Litig. , 183 F.3d 970 , 986 (9th Cir. 1999). The Ninth Circuit has "extended the 'incorporation by reference' doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN , 393 F.3d 1068 , 1076 (9th Cir. 2005) ( citing Parrino v. FHP, Inc. , 146 F.3d 699 , 706 (9th Cir. 1998)) (holding that the district court properly considered documents attached to a motion to dismiss that described the terms of plaintiff's group-health insurance plan, where plaintiff alleged membership in the plan, his claims depended on the conditions described in the documents, and plaintiff never disputed their authenticity).

2. The Interpretation of Insurance Agreements

Because the defendants are California residents, and the parties' dispute *925 relates to an insurance policy covering property located in the state, California substantive law applies in this diversity action. Freeman v. Allstate Life Ins. Co., 253 F.3d 533 , 536 (9th Cir. 2001). In California, courts apply contract law to interpret insurance policies:

MacKinnon v. Truck Insurance Exchange , 31 Cal. 4th 635 , 647-48, 3 Cal.Rptr.3d 228 , 73 P.3d 1205 (Cal. 2003).

3. An Insurer's Duty to Defend

An insurer's duty to defend is broader than its duty to indemnify:

Scottsdale Insurance Company v. MV Transportation , 36 Cal. 4th 643 , 654-55, 31 Cal.Rptr.3d 147 , 115 P.3d 460 (Cal. 2005).

ANALYSIS

The defendants move for judgment on the pleadings on the ground that the "wrongful eviction" creates a duty to defend. 30 The parties do not dispute that GEICO has a duty to defend a wrongful eviction that occurred during the policy period, which here began May 8, 2018. Instead, they dispute whether the wrongful eviction occurred in the policy period (meaning, on or after May 8, 2019). The defendants contend that the eviction became wrongful in July 2018 (after the expiration of the 90-day period for an owner move-in or, alternatively, a tender of the property back to the tenants) and that in any event, the tenants were not required to surrender the property until May 12, 2018 (within the policy period). 31 GEICO contends that the "wrongful eviction" occurred when the defendants terminated the tenancy in March 2018, and certainly by the time the tenants vacated the property in April 2018, and the defendants regained possession of it on May 1, 2019. 32 The court denies the defendants' motion because the defendants terminated the tenancy before the policy's effective date.

The policy covers "occurrences" during the policy period. 33 It is an offense-based coverage, and the event "triggering coverage" for covered "offenses" (such as the wrongful eviction here) "is the commission of the specified offense during the policy period." 34 Mez Indus., Inc. v. Pac. Nat. Ins. Co., 76 Cal. App. 4th 856 , 865, 90 Cal.Rptr.2d 721 (1999) ; Street Surfing, LLC v. Great Am. E & S Ins. Co. , 776 F.3d 603 , 610 (9th Cir. 2014). The offense occurs on the date it commences, even if the offense is a continuing offense.

*927 Zurich Ins. Co. v. Peterson , 188 Cal. App. 3d 438 , 444-49, 232 Cal.Rptr. 807 (1986) ; Harbor Ins. Co. v. Cent. Nat'l Ins. Co. , 165 Cal. App. 3d 1029 , 1040, 211 Cal.Rptr. 902 (1985).

Here, as GEICO argues, at least three dates are relevant: March 13, 2018 (when the defendants served the notice of termination of tenancy); April 21, 2018 (when the plaintiffs vacated the property pursuant to the notice); and May 1, 2018 (when the defendants recovered possession of the property). 35 All dates have legal significance, and all occurred before the policy's effective date. For example, cases hold that wrongful eviction occurs when the landlord serves the eviction notice. Sylve v. Riley , 15 Cal. App. 4th 23 , 26, 18 Cal.Rptr.2d 608 (1993) ; Menefee v. Ostawari, 228 Cal. App. 3d 239 , 246, 278 Cal.Rptr. 805 (1991) ("Appellant was damaged at the time of service of the 30-day notice in that respondents interfered with his continued right of possession at that time"). In insurance-coverage cases, courts emphasize the actual departure of the tenant pursuant to an eviction notice. Cunningham v. Universal Underwriters , 98 Cal. App. 4th 1141 , 1149, 120 Cal.Rptr.2d 162 (2002) (physical dispossession is the sine qua non of eviction); see Swain v. California Casualty Insurance Company, 99 Cal. App. 4th 1 , 10, 120 Cal.Rptr.2d 808 (2002) (wrongful eviction is a discrete tort that consists in "the formal termination of a legal relationship").

The defendants nonetheless argue that the eviction was at least ongoing until the expiration of the 90-day period (to take possession or tender it back to the tenants). 36 But that provision of the San Francisco Rent Ordinance is a "safe harbor" provision that does not render a previous eviction "wrongful" and instead is evidence about whether the landlord was acting in good faith at the time it served the eviction notice. See id. at 9 , 120 Cal.Rptr.2d 808 ("landlords evicted tenants to allow a family move-in but later rented the property to another tenant; court rejected defendants' argument that the eviction "only became illegal after the fact when the [defendants] failed to move into the premises themselves" and held that the insured's conduct, whether lawful or not, inflict[ed] an obvious harm to an important interest - the claimant's interest in a leasehold, a place of shelter, [or] a home....").

The defendants also suggest that the state complaint's references to "personal injury" and other enumerated torts extend the eviction into the policy period. 37 In their reply, they elaborate:

They cite no authority to support the argument. Again, coverage is based on when *928 the "offense is committed." Here, at minimum, that is when the tenants departed or when the defendants regained possession of the property. Cunningham , 98 Cal. App. 4th at 1149 , 120 Cal.Rptr.2d 162 . The same is true for the other enumerated torts. For example, for the tort of malicious prosecution, insurance-coverage cases hold that -- for purposes of insurance policies that measure coverage from the time when the "offense is committed" -- the tort of malicious prosecution occurs when the complaint is filed. Zurich, 188 Cal. App. 3d at 446 -47 , 232 Cal.Rptr. 807 .

The defendants also argue that under the 60-day notice, the tenants were not required to vacate the premises until May 12, 2018, which was in the policy period. 39 That argument does not change the outcome for the same reason: the offense was committed before the policy period, meaning, when the tenants left and when the defendants regained possession. These events happened before May 8, 2018, the effective date of the GEICO policy.

CONCLUSION

The court denies the defendants' motion for judgment on the pleadings. Under the circumstances, and on this record, the court denies GEICO's request that the court enter judgment in its favor. This order is without prejudice to GEICO's raising the arguments in a motion for summary judgment.

IT IS SO ORDERED.

First Am. Compl. ("FAC") - ECF No. 7. Citations refer to material in the Electronic Case File ("ECF"); pinpoint citations are to the ECF-generated page numbers at the top of documents.

Mot. - ECF No. 8 at 4; Opp. - ECF No. 18 at 23.

FAC - ECF No. 7 at 2 (¶ 8) & Ex. A.

Id. at 2 (¶ 9). Under the policy, the " [r]etained limit is the amount of any damages an insured must pay for any occurrence resulting in personal injury or property damage which is not covered by your primary insurance ." Policy, Ex. A to FAC - ECF No. 7 at 22 (¶ 9).

"Occurrence" is defined as "an accident or event, including a continuous or repeated exposure to conditions which results in personal injury or property damage neither expected or intended by an insured . For the purpose of determining the limit of liability, continuous or repeated exposure to substantially the same harmful conditions, during the policy period, which results in personal injury and/or property damage shall be considered as arising out of one occurrence ." Id. at 21 (¶ 4).

FAC - ECF No. 7 at 2 (¶ 10).

Id. (quoting the policy).

Id. (quoting the policy).

Id. (¶ 11).

Id. (¶ 12).

FAC - ECF No. 7 at 3 (¶ 13); Policy, Ex. A to FAC - ECF No. 7 at 26 (¶ 1(a)).

FAC - ECF No. at 4 (¶ 15); State Compl. - ECF No. 7 at 35-36 (¶¶ 1, 5).

FAC - ECF No. at 4 (¶ 16); Notice, Ex. A to Nadkarni Decl. - ECF No. 8-2. The court considers the Notice under the incorporation-by-reference doctrine. Knievel v. ESPN, 393 F.3d 1068 , 1076-77 (9th Cir. 2005).

FAC - ECF No. at 4 (¶ 16).

Id. (¶ 17) (move in within three months and live there for three years or offer the property back to the former tenants at the former rate, less any allowable increase).

State First Amended Complaint - ECF No. 7 at 125-130 (¶¶ 24-74).

FAC - ECF No. 7 at 5 (¶¶ 22-23) (alterations in original).

Id. at 5-6 (¶ 24).

Id. at 5-7 (¶¶ 24-26) & Statements of Occupancy, Ex. C to FAC - ECF No. 7 at 71-73, 75-80, 82-90.

Id. at 7 (¶ 27); Letter, Ex. D to FAC - ECF No. 7 at 91-96.

FAC - ECF No. 7 at 7 (¶ 28); Letter, Ex. E. to FAC - ECF No. 7 at 97-100.

FAC - ECF No. 7 at 7-8 (¶ 29); Letter, Ex. F to FAC - ECF No. 7 at 102-109.

FAC - ECF No. 7 at 8 (¶ 30); Email, Ex. G to FAC - ECF No. 7 at 111-112.

FAC - ECF No. 7 at 8 (¶ 30); Email, Ex. G to FAC - ECF No. 7 at 111.

FAC - ECF No. 7 at 8 (¶ 31); Letter, Ex. H to FAC - ECF No. 7 at 115-116.

Id. (¶ 32) & Email, Ex. I to FAC - ECF No. 7 at 119-120.

Compl. - ECF No. 1; FAC - ECF No. 7.

Mot. - ECF No. 8; Answer - ECF No. 19. Geico pointed out that the motion for judgment on the pleadings was untimely because the defendants had not answered the complaint. Because the defendants have now answered, the pleadings are "closed," and the court may consider the motion. See Fed. R. Civ. P. 12(c).

Consent Forms - ECF Nos. 5, 9.

Mot. - ECF No. 8 at 5.

Id. at 15; Reply - ECF No. 20 at 3.

Opp. - ECF No. 18 at 18-19.

Id. at 13.

Id.

Id. at 18-19.

Mot. - ECF No. 8 at 13.

Id. at 15-16. GEICO points to other allegations in the state complaint about "property loss" and "property damage" and argues that they are conclusory, do not relate to the complaint's core allegations about wrongful eviction, and do not trigger a duty to defend under the policy. Opp. - ECF No. 18 at 13 n.5.

Reply - ECF No. 20 at 2.

See Reply - ECF No. 20 at 3.