Creative Paperclay Co. v. Sentry Insurance

MEMORANDUM **

Creative Paperclay Company, Inc. asserts that the district court erred in grant *861 ing Sentry Insurance summary judgment and denying Creative Paperclay’s motion for an order specifying issues that exist without substantial controversy. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291 . We affirm.

We review a district court’s decision to grant or deny summary judgment de novo. Zeltser v. City of Oakland, 325 F.3d 1141, 1143 (9th Cir.2003). Under California law, Creative Paperclay has the burden of establishing that the counterclaim in this case comes within the scope of the policy provided by Sentry Insurance. Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 16 , 44 Cal.Rptr.2d 370 , 900 P.2d 619 (1995). Because the parties are familiar with the facts and procedural history, they are not recited here except as necessary.

Handcraft’s counterclaim in the underlying suit does not allege an “advertising injury” covered by the insurance policy. The counterclaim does not allege a claim for trademark infringement or common law misappropriation, which is covered by the insurance policy. Rather, the counterclaim merely seeks to have Creative…