Thom Hayward, and Andresen Color of San Francisco Inc., a Corporation v. Centennial Insurance Company, a Corporation

This case concerns the duty of an insurer to defend the insured against claims under a policy covering advertising injury. While this case was before the district court, the California Supreme Court decided Hameid v. National Fire Insurance of Hartford, 31 Cal.4th 16 , 1 Cal.Rptr.3d 401 , 71 P.3d 761 (2003), which defines the term “advertising injury.” As a result, the district court granted summary judgment in favor of the insurer. Hayward appeals.

We have jurisdiction under 28 U.S.C. § 1291 and affirm on the basis of California law.

I

The relevant facts are undisputed. From 1996-1999, Hayward was employed by In Sync Media — San Francisco Corporation (“In Sync”), a provider of pre-press services to advertising agencies. In 1999, Hayward joined In Sync’s competitor An-dresen Color of San Francisco, Inc. (“An-dresen”). In 2000, In Sync filed a complaint alleging breach of contract and breach of fiduciary duty against Hayward and alleging misappropriation of trade secrets and violation of the California Business and Professions Code against Hayward, Andresen and others. Andresen and Hayward tendered defense of the action to their insurance carrier, Centennial Insurance Co.…