FILED

NOT FOR PUBLICATION

FEB 13 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

COUNTY OF SACRAMENTO, No. 22-15250

Plaintiff-Appellant, D.C. No. 2:19-cv-00263-MCE-DB v.

EVEREST NATIONAL INSURANCE MEMORANDUM*

COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted January 24, 2023 San Francisco, California

Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.

The County of Sacramento (County) appeals the district court’s grant of

summary judgment in favor of Everest National Insurance Company (Everest).

The County contends that the district court erred in holding that California

Insurance Code § 533 foreclosed indemnification of the County’s liability for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. retaliation claims brought against the County Sheriff’s Department under

California’s Fair Employment and Housing Act (FEHA).

“We review the district court’s grant or denial of summary judgment de

novo. We also review its interpretation of state law and the insurance policies de

novo. . . .” Westport Ins. Corp. v. Cal. Cas. Mgmt. Co., 916 F.3d 769, 773 (9th

Cir. 2019) (citations omitted).

California Insurance Code § 533 provides that “[a]n insurer is not liable for a

loss caused by the wilful act of the insured; but he is not exonerated by the

negligence of the insured, or of the insured’s agents or others.” California

Insurance Code § 533 “is an implied exclusionary clause which by statute is to be

read into all insurance policies.” Certain Underwriters at Lloyd’s London v.

ConAgra Grocery Prods. Co., 77 Cal. App. 5th 729, 739 (2022) (citation omitted)

(emphasis in the original). The provision’s “legislative purpose is both clear and

unequivocal. It is to deny insurance coverage for wilful wrongs.” Downey

Venture v. LMI Ins. Co., 66 Cal. App. 4th 478, 500 n.32 (1998).1

1 The retaliation claims brought against the County were willful acts for the purposes of California Insurance Code § 533. See Certain Underwriters at Lloyd’s London, 77 Cal. App. 5th at 740 (explaining that “[c]onduct for which the law imposes liability, and which is expected or intended to result in damage, must be considered wrongful and willful”) (citation omitted); see also B & E Convalescent Center v. State Comp. Ins. Fund, 8 Cal. App. 4th 78, 98-99 (1992). 2 “An insurer’s duty to indemnify is only determined when the insured’s

underlying liability is established.” Certain Underwriters at Lloyd’s London, 77

Cal. App. 5th at 740 (citation and internal quotation marks omitted). “The duty to

indemnify on a particular claim is determined by the actual basis of liability

imposed on the insured.” Id. (citation omitted) (emphasis added). California

courts have held that FEHA imposes direct employer liability. See DeJung v.

Superior Ct., 169 Cal. App. 4th 533, 545 (2008) (clarifying that “FEHA expressly

makes public employers, like private employers, directly liable for violations of

that law”) (emphasis added); see also Caldwell v. Montoya, 10 Cal. 4th 972, 989

n.9 (1995); Farmers Ins. Grp. v. County of Santa Clara, 11 Cal. 4th 992, 1014 n.12

(1995).

Although the County maintains that California Insurance Code § 533 did

not bar indemnity because the County was vicariously or strictly liable for the

willful acts of its employees, vicarious or strict liability was not “the actual basis of

liability” imposed on the County. Certain Underwriters at Lloyd’s London, 77

Cal. App. 5th at 740 (citation omitted). This is true not only as a matter of law, as

discussed above, but based on the underlying trial as well. Prior to trial in the

underlying action, counsel for the County acknowledged that the County was

“[t]he proper party defendant . . . rather than the Sacramento County Sheriff’s

3 Department” because the Sheriff’s Department was “simply a department within

the County structure.” In support of its motion for summary judgment, the County

confirmed that it was “the ultimate employer of all County employees, including

sworn officers.” The verdict forms do not reflect that the County was held strictly

or vicariously liable for the retaliatory conduct, and the County’s trial counsel

conceded that the jury was not instructed on vicarious liability. As a result, the

County was directly liable for the FEHA violations, see DeJung, 169 Cal. App. 4th

at 545, and the district court properly granted summary judgment in favor of

Everest because California Insurance Code § 533 barred indemnity of the

retaliation claims. See Certain Underwriters at Lloyd’s London, 77 Cal. App. 5th

at 740. The County is not entitled to any further defense costs because the

County’s defense costs did not exceed the $2 million limit (deductible) in the

insurance policy.

Because the language of the statute is clear and has been interpreted

consistently by California courts, there is no need to certify a question to the

California Supreme Court to resolve this case. See U.S. Bank, N.A., Trustee for

Banc of Am. Funding Corp. Mortg. v. White Horse Estates Homeowners Ass’n,

987 F.3d 858, 867-68 (9th Cir. 2021) (declining to certify question when “the

answer to the legal issue [was] clear”). Insofar as the County seeks an exemption

4 to California Insurance Code § 533 for certain public employers, that request is

properly directed to the state legislature.

AFFIRMED.

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