Albert D. Seeno Construction Co., Inc. v. AIG Specialty Insurance Company

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 ALBERT D. SEENO CONSTRUCTION Case No. 21-cv-02152-JST CO., INC., et al., [8] Plaintiffs, ORDER DENYING PLAINTIFFS’ 9 MOTION FOR PARTIAL SUMMARY v. JUDGMENT AND GRANTING 10 DEFENDANTS’ MOTION FOR AIG SPECIALTY INSURANCE PARTIAL SUMMARY JUDGMENT 11 COMPANY, et al., Re: ECF Nos. 144, 149 12 Defendants. [13] 14 Before the Court are motions for summary judgment brought by Plaintiffs Albert D. Seeno 15 Construction Co., Inc. and related entities (collectively, “Seeno”), ECF No. 144, and Defendants 16 AIG Specialty Insurance Company (“ASIC”) and Insurance Company of the State of Pennsylvania 17 (“ICSOP”), ECF No. 149. For the reasons set forth below, the Court will grant ASIC and 18 ICSOP’s motion and deny Seeno’s motion. 19 I. BACKGROUND 20 Seeno is a group of residential development and construction companies that build homes 21 in Northern California. In order to manage its construction defect liability risk, Seeno purchases 22 multiple layers of general liability insurance. From 2007 to 2015, Seeno obtained primary 23 insurance from Aspen Insurance UK, Ltd. (“Aspen”). Herman Decl. ¶ 4, ECF No. 144-1. 24 Specifically, Aspen issued Policy No. B08010UM74610 effective from December 1, 2007, to 25 December 1, 2012 (“07-12 Aspen policy”), as well as Policy No. B080114282U12, effective from 26 December 1, 2012, to December 1, 2015 (“12-15 Aspen policy”). Id.¶ 5; ECF No. 149-4 at 76. 27 Under the Aspen policies, Aspen agreed to indemnify Seeno against liability for property damage 1 ¶¶ 6-7, ECF No. 144-1. Aspen’s indemnity obligation was subject to a self-insured retention of 2 $250,000 per occurrence. Id. ¶ 6. The 12-15 Aspen policy had a limit of five million dollars, 3 which was eroded by Aspen’s payments made to settle claims and lawsuits, as well as defense 4 expenses. Cox Decl. ¶ 3, Ex. B, ECF No. 145-2 at 337. Specifically, Aspen paid $3,255,88.05 in 5 defense costs and $1,744,111.95 in settlement costs. Salerno Decl., Ex. F, Herman Depo. at 6 226:4-227:19. Seeno also purchased excess insurance through ICSOP and ASIC. ICSOP 7 provided ten million dollars in excess coverage for the 2007-2012 period, with the 07-12 Aspen 8 policy as the scheduled underlying insurance. ECF No. 42-1 at 2-29. ASIC provided ten million 9 dollars in excess insurance for the 2012-2015 period, with the 12-15 Aspen policy as the 10 scheduled underlying insurance. Herman Decl. ¶ 5, ECF No. 144-1; Cox Decl. ¶ 3, Ex. B, ECF 11 No. 145-2 at 308-362. 12 Seeno was subject to multiple construction defect claims for homes built during the 2007– 13 2015 period. Salerno Decl. ¶ 2, Ex. A, Miller Depo at 109:7-110:4, ECF No. 150. Aspen covered 14 Seeno’s defense and indemnity under its policies. Fortin Decl. ¶ 2, Ex. A, ECF No. 149-2. As 15 Aspen’s primary coverage approached exhaustion, Aspen notified ICSOP and ASIC. Id. ICSOP 16 did not deny that the underlying actions fell within its policy coverage. ICSOP did, however, 17 refuse to defend Seeno, maintaining that its policy did not contain a duty to defend. Taylor Decl. ¶ 18 2, Exs. A-E, ECF No. 149-3. ICSOP also did not reimburse Seeno for all defense expenses as 19 they were incurred. ASIC, on the other hand, refused coverage altogether, insisting that under the 20 terms of its policy Seeno was not entitled to coverage. Herold Decl. ¶¶ 1-2, Exs. A-B, ECF No. 21 149-1. 22 On March 26, 2021, Seeno filed the present action against ICSOP and ASIC for breach of 23 contract; declaratory relief; breach of the implied covenant of good faith and fair dealing; and 24 violation of California’s Business and Professions Code § 17200. ECF No. 1. On September 20, 25 2021, the Court granted in part and denied in part ASIC and ICSOP’s motion to dismiss. ECF No. 26 39. Relevant here, the Court found that under the terms of the ICSOP policy, ICSOP did not have 27 a duty to pay defense expenses as incurred. ECF No. 39 at 6-7. Seeno then filed an amended 1 ASIC regarding its duty to defend; (3) breach of contract and (4) declaratory relief against ASIC 2 regarding its duty to indemnify; (5) breach of the implied covenant of good faith and fair dealing 3 against ASIC; (6) unfair business practices against ASIC under California Business and 4 Professions Code § 17200; (7) breach of contract; (8) declaratory relief; (9) breach of the implied 5 covenant of good faith and fair dealing against ICSOP regarding its duty to pay defense expenses; 6 and (10) unfair business practices against ICSOP under California Business and Professions Code 7 § 17200. ECF No. 42. The amended complaint added new theories for Seeno’s breach of contract 8 claim against ICSOP regarding defense expenses: (1) that ICSOP breached the policy by failing to 9 reimburse defense expenses in cases where the underlying actions were resolved; (2) that ICSOP 10 and Seeno formed an agreement, separate from the written insurance policy, that required ICSOP 11 to pay defense expenses contemporaneously; and (3) that ICSOP had waived or was estopped 12 from asserting it had no duty to reimburse defense expenses as incurred. Id. 13 Seeno now moves for summary judgment on its second and fourth causes of action. ECF 14 No. 144. ASIC moves for summary judgment on the first through sixth causes of action. ECF 15 No. 149. ICSOP moves for summary judgment on the seventh through tenth causes of action.1 Id. 16 II. JURISDICTION 17 The Court has jurisdiction under 28 U.S.C. § 1332 . 18 III. JUDICIAL NOTICE 19 Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a fact that 20 is not subject to reasonable dispute because it: (1) is generally known within the trial court’s 21 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 22 accuracy cannot be questioned.” If a fact is not subject to reasonable dispute, the court “must take 23 judicial notice if a party requests it and the court is supplied with the necessary information.” Fed. 24 R. Evid. 201(c)(2). 25 ASIC and ICSOP request the Court take judicial notice of the complaint and 26 accompanying exhibits filed in Seeno’s state court action against Aspen. ECF No. 149-4. A court [27] 1 “may take judicial notice of court filings and other matters of public record.” Reyn’s Pasta Bella 2 LLC v. Visa USA, Inc., 442 F.3d 741 , 746 n.6 (9th Cir. 2006). The Court therefore grants the 3 request. 4 IV. LEGAL STANDARD 5 Summary judgment is proper when “there is no genuine dispute as to any material fact and 6 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are 7 those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 8 (1986). A dispute over a material fact is genuine “if the evidence is such that a reasonable jury 9 could return a verdict for the nonmoving party.” Id. The burden of establishing the absence of a 10 genuine issue of material fact lies with the moving party, Celotex Corp. v. Catrett, 477 U.S. 317 , 11 323 (1986), and the court must view the facts and draw reasonable inferences in the light most 12 favorable to the nonmoving party, Scott v. Harris, 550 U.S. 372, 378 (2007). To meet its burden, 13 “[t]he moving party may produce evidence negating an essential element of the nonmoving party’s 14 case, or, after suitable discovery, the moving party may show that the nonmoving party does not 15 have enough evidence of an essential element of its claim or defense to carry its ultimate burden of 16 persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1106 (9th Cir. 17 2000). Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the 18 pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact 19 precludes summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 20 586 (1986). Instead, “the nonmoving party must come forward with specific facts showing that 21 there is a genuine issue for trial.” Id. at 587 (internal quotation marks and citation omitted) 22 (emphasis in original). There is no genuine issue for trial “[w]here the record taken as a whole 23 could not lead a rational trier of fact to find for the non-moving party.” Id. 24 V. DISCUSSION 25 A. Whether Seeno is Entitled to Coverage Under the ASIC Policy 26 ASIC moves for summary judgment on Seeno’s breach of contract claims. ECF No. 149. 27 In addition, both ASIC and Seeno move for summary judgment on Seeno’s declaratory relief 1 ECF No. 144, ECF No. 149. All require determination of whether Seeno was entitled to coverage 2 under the terms of the ASIC policy. 3 In California, interpretation of an insurance policy is a question of law. Waller v. Truck 4 Ins. Exch., Inc., 11 Cal. 4th 1, 18 (1995). “While insurance contracts have special features, they 5 are still contracts to which the ordinary rules of contractual interpretation apply.” Bank of the W. 6 v. Superior Ct., 2 Cal. 4th 1254, 1264 (1992). “The fundamental goal of contractual interpretation 7 is to give effect to the mutual intention of the parties.” Id. If possible, such intent is to be inferred 8 solely from the written provisions of the contract. AIU Ins. Co. v. Superior Ct., 51 Cal. 3d 807 , 9 822 (1990). The written provisions should be examined “together, so as to give effect to every 10 part, if reasonably practicable.” Cal. Civ. Code § 1641 . If the contractual language is clear and 11 explicit, it governs. Bank of the W., 2 Cal. 4th at 1264 . 12 If “policy language is ambiguous, it is to be resolved by interpreting the ambiguous 13 provisions in accordance with the insured’s objectively reasonable expectations.” Armstrong 14 World Indus., Inc. v. Aetna Cas. & Sur. Co., 45 Cal. App. 4th 1, 36 (1996). A policy provision is 15 ambiguous when it is capable of two or more reasonable constructions. MacKinnon v. Truck Ins. 16 Exch., 31 Cal. 4th 635, 648 (2003). “If an asserted ambiguity is not eliminated by the language 17 and context of the policy, courts then invoke the principle that ambiguities are generally construed 18 against the party who caused the uncertainty to exist (i.e., the insurer) in order to protect the 19 insured’s reasonable expectation of coverage.” La Jolla Beach & Tennis Club, Inc. v. Indus. 20 Indem. Co., 9 Cal. 4th 27, 37 (1994). 21 1. Applicability of the Coverage A Provision 22 ASIC and Seeno first dispute which coverage provision of the ASIC policy applies. Seeno 23 contends that it is covered by both Coverage A and Coverage B. ECF No. 144 at 11-13, 18-21. 24 ASIC, on the other hand, argues only Coverage B applies when, as here, there is applicable 25 underlying insurance. ECF No. 149 at 17-18. The relevant provisions state: 26 A. Coverage A: Excess Liability Over Insured’s Self-Insured Retention. 27 We will pay on behalf of the Insured those sums in excess of the Self-Insured Injury and Advertising Injury to which this insurance applies or because of Bodily 1 Injury or Property Damage to which this insurance applies assumed by the Insured under an Insured Contract. [2] Coverage A will be provided according to the terms, definitions, conditions and 3 exclusions of this policy. 4 B. Coverage B: Excess Liability Over Scheduled Underlying Insurance and any Other Insurance [5] We will also pay on behalf of the Insured those sums in excess of the total applicable 6 limits of Scheduled Underlying Insurance and any Other Insurance that the Insured becomes legally obligated to pay as damages provided the damages would be 7 covered by Scheduled Underlying Insurance and any Other Insurance, except for exhaustion of the total applicable limits of Scheduled Underlying Insurance and any 8 Other Insurance by the payment of Loss. 9 Coverage B will follow the terms, definitions, conditions and exclusions of Scheduled Underlying Insurance, subject to the Policy Period, Limits of Insurance, premium 10 and all other terms, definitions, conditions and exclusions of this policy. If any provisions of Scheduled Underlying Insurance conflict with any provisions of this 11 policy, the provisions of this policy will apply. 12 Cox Decl. ¶ 3, Ex. B, ECF No. 145-2 at 61 (emphasis in original). 13 Seeno argues that by its terms, the Coverage A provision is triggered whenever there is 14 satisfaction of the Self-Insured Retention and Coverage B is triggered whenever there is 15 exhaustion of the underlying insurance. ECF No. 144 at 11. Nothing in the terms, Seeno reasons, 16 prohibits both provisions from applying when the underlying insurance is exhausted, and the Self17 Insured Retention is satisfied. Id. ASIC responds that Coverage A applies only when there is no 18 applicable underlying insurance. ECF No. 149 at 17. Otherwise, it argues, the Coverage B 19 provision would be redundant and superfluous. Id. at 17-18. 20 The Court agrees with ASIC that by the plain terms of the policy, Coverage B applies only 21 when, as here, there is applicable underlying insurance. “The two coverage provisions, when read 22 together, make the [ASIC] policy applicable either as excess insurance over the limits of the 23 underlying insurance when the underlying insurance ‘covers’ an occurrence, or as alternative 24 primary coverage as to losses ‘not covered’ by the underlying policy.” Wells Fargo Bank v. Cal. 25 Ins. Guar. Ass’n., 38 Cal. App. 4th 936, 946 (1995) (emphasis in original). Otherwise, the ASIC 26 policy would effectively serve as primary coverage, because Seeno could invoke the policy 27 anytime the Self-Insured Retention was satisfied regardless of the availability of the Aspen policy. 1 See Waller, 11 Cal. 4th at 27-28 (1995) (reasonable expectations of the parties reinforced the 2 court’s finding that “bodily injury” provision did not require the insurer to defend a third-party 3 lawsuit in which uncovered economic loss was the gravamen of the complaint). 4 Seeno attempts to avoid this result by arguing there was no applicable underlying 5 insurance for claims made after the Aspen policy exhausted. ECF No. 193 at 15. Since there was 6 no available underlying insurance for those claims, Seeno reasons they fall within the Coverage A 7 provision. Id. However, the relevant inquiry is not whether the Aspen policy was available for 8 these claims but whether the claims fell within the scope of Aspen’s coverage. Ticor Title Ins. Co. 9 v. Emps. Ins. of Wausau, 40 Cal. App. 4th 1699, 1709 (1995) (“In the context of an insurance 10 policy, coverage means ‘inclusion within the scope of an insurance policy,’ not ‘the act or fact of 11 covering.’”). Seeno does not dispute that these claims fall within the scope of the underlying 12 insurance coverage and would have been covered had the policy not exhausted. Therefore, these 13 claims are also governed by Coverage B of the policy. See id. 14 2. Whether Coverage B was Triggered 15 The parties also dispute whether Seeno is entitled to coverage under the Coverage B 16 provision. Both Seeno and ASIC agree that the scheduled underlying insurance, the five million 17 12-15 Aspen policy, exhausted. ECF No. 144 at 6; ECF No. 149 at 14. Specifically, Aspen paid 18 $ 1,744,111.94 towards resolving the claims and $ 3,255,888.05 in defense costs. Salerno 19 Decl. ¶ 7, Ex. F, ECF No. 150 at 310, 331. They disagree whether this was sufficient to trigger 20 coverage under the Coverage B provision. ASIC contends that the plain terms require exhaustion 21 of the underlying insurance by the payment of loss, which does not include defense expenses. 22 ECF No. 149 at 18-20. Seeno, on the other hand, argues all that was required to trigger Coverage 23 B was exhaustion of the Aspen policy limits. ECF No. 144 at 18-21. 24 The Court finds that the Coverage B provision unambiguously requires the Aspen policy 25 be exhausted by judgments and settlements, not defense expenses. The provision states that ASIC 26 “will also pay […] those sums in excess of the total applicable limits of Scheduled Underlying 27 Insurance and any Other Insurance […] provided the damages would be covered by Scheduled 1 limits […] by the payments of Loss.” Cox Decl. ¶ 3, Ex. B, ECF No. 145-2 at 61 (emphasis in 2 original). The term loss is rendered in boldface, directing the reader’s attention to that term, and is 3 defined in the definitions section of the policy as “those sums actually paid as judgments and 4 settlements.” Id. at 67. “The term ‘judgments’ generally refers to a decision by some adjudicative 5 body as to the parties’ rights [and] ‘settlements’ envisions some agreement between parties as to a 6 dispute between them.” Intel Corp. v. Am. Guar. & Liab. Ins. Co., 51 A.3d 442, 449 (Del. 2012). 7 Defense costs do not fall within the plain meaning of either term. See id. 8 Seeno contends this reading is contradicted by Endorsement 9 which amended paragraph F 9 in the Limits of Insurance Section. ECF No. 144 at 20. Paragraph F originally stated that “[i]f the 10 Self-Insured Retention or limits of Scheduled Underlying Insurance are reduced or exhausted 11 by the payment of Loss, we will […] pay those sums covered herein excess of the exhausted Self12 Insured Retention or Scheduled Underlying Insurance.” Cox Decl. ¶ 3, Ex. B, ECF No. 145-2 13 at 64. Endorsement 9 amended that provision to “[t]his policy applies only in excess of the total 14 applicable limits of Scheduled Underlying Insurance, any applicable Other Insurance and 15 Specified Coverage Self Insured Retention whether or not such limits are collectible.” Id. at 35616 357. Seeno points out that this amendment took out the “payment of loss” language from the 17 Limits of Insurance Section. ECF No. 144 at 20. This amendment, Seeno argues, “only makes 18 sense if ASIC recognized the necessary inconsistency in Coverage B and intended to address that 19 inconsistency” through this paragraph. Id. But nothing in Endorsement 9 purports to change the 20 Coverage B provision or when it is triggered. Had the parties wanted to make such a change, they 21 could have done so explicitly through an endorsement. Nor is Endorsement 9 inconsistent with 22 the Coverage B requirement that the underlying insurance be reduced by the payment of loss, as 23 any payment made under Coverage B will necessarily be in “excess” of the underlying insurance. 24 Further undercutting Seeno’s argument, Endorsement 9 also modified the paragraph below, 25 paragraph G, to include the “payment of loss” language. Cox Decl. ¶ 3, Ex. B, ECF No. 145-2 at 26 357. 27 ASIC further argues that even if the Aspen policy had been exhausted by the payment of 1 satisfied a $ 250,000 Self-Insured Retention. ECF No. 149 at 17. ASIC points to Endorsement 9 2 entitled “Self-Insured Retention Applicable to Specified Coverage After Underlying Limits are 3 Reduced or Exhausted” which amended the ASIC policy “Declarations, Item 4. Self-Insured 4 Retention” to “include the following additional Self Insured Retention” of $ 250,000. Cox Decl. ¶ 5 3, Ex. B, ECF No. 145-2 at 356-58 (emphasis added). Seeno contends Endorsement 9 only 6 modified the Self-Insured Retention applicable to the Coverage A provision, not add an additional 7 Self-Insured Retention to Coverage B. ECF No. 193 at 14-15. 8 That Endorsement 9 would serve as an additional Self-Insured Retention following 9 exhaustion of the Aspen policy is indicated from both the title which states it is “applicable after 10 underlying limits are reduced or exhausted” and its text, which asserts it is to be an “additional” 11 Self-Insured Retention. Cox Decl. ¶ 3, Ex. B, ECF No. 145-2 at 356-58. Seeno argues that the 12 reference to “underlying limits” in the title of Endorsement 9 does not necessarily implicate the 13 Coverage B provision and as a heading, cannot be relied upon under the terms of the policy. ECF 14 No. 193 at 14-15. While true the ASIC policy states “headings are not operative terms” they still 15 provide context to the policy and the parties intent. And as explained, only Coverage B can apply 16 when there has been exhaustion of the “underlying limits.” Further, the text of Endorsement 9 that 17 amends paragraph G to read “[i]f the total applicable limits of Scheduled Underlying Insurance 18 […] are reduced or exhausted by the payment of Loss to which this policy applies we will […] in 19 the event of exhaustion, pay in excess of the Specified Coverage Self Insured Retention” makes 20 clear that after exhaustion of the Aspen policy, ASIC would only cover amounts above the Self21 Insured Retention. Cox Decl. ¶ 3, Ex. B, ECF No. 145-2 at 357 (emphasis added). 22 Because the five million dollar Aspen policy has not been exhausted by payments of 23 judgments and settlements, the Coverage B provision, and the corresponding duty to defend have 24 not been triggered. Accordingly, ASIC is entitled to summary judgment on Seeno’s first and third 25 causes of action for breach of contract, as well as the second and fourth causes of action for 26 declaratory relief. See Valley Cmty. Bank v. Progressive Cas. Ins. Co., 854 F. Supp. 2d 697 , 712 27 (N.D. Cal. 2012) (granting summary judgment on claims for declaratory relief incidental to claims 1 B. Whether ICSOP Had a Duty to Pay Defense Expenses as Incurred 2 1. Independent Contract 3 The Court previously found that under the terms of the ICSOP policy, ICSOP did not have 4 a duty to pay defense expenses as incurred. ECF No. 39 at 5-7. ICSOP now moves for summary 5 judgment on Seeno’s breach of contract claims based on the theory that ICSOP and Seeno entered 6 into a separate agreement, independent of the written ICSOP policy, in which ICSOP agreed to 7 reimburse Seeno for defense expenses as incurred. ECF No. 149 at 24-26. “The . . . elements of a 8 cause of action based on contract are mutual assent (usually accomplished through the medium of 9 an offer and acceptance) and consideration.” Pac. Bay Recovery, Inc. v. Cal. Physicians’ Servs., 10 Inc., 12 Cal. App. 5th 200, 215 (2017) (quoting Div. of Lab. L. Enf’t v. Transpacific 11 Transportation Co., 69 Cal. App. 3d 268, 275 (1977). ICSOP contends that Seeno has not met its 12 burden of showing a new contract between the parties was formed. ECF No. 149 at 24-26. 13 To support its breach of contract claim, Seeno points to testimony from Julie Herman, 14 Seeno’s risk officer, stating a representative of ICSOP told her “send to Roxana the invoices and 15 the proof of payments and we’ll reimburse you.” ECF No. 193 at 23 (quoting DeVries Decl., Ex. 16 B at 125:22-126:10, ECF No. 194). This is insufficient to support Seeno’s claim another contract 17 was formed. For one, the purported offer is insufficiently definite, as it does not indicate anything 18 about when ICSOP would reimburse the claims. See Spellman v. Dixon, 256 Cal. App. 2d 1 , 3 19 (1967) (“to enforce a contract at law, the offer must be sufficiently definite or must call for such 20 definite terms in the acceptance, that the performance required is reasonably certain.”) 21 Additionally, there was no new consideration to support the formation of an independent contract, 22 as it is undisputed Seeno was already required to send the invoices and proof of payments under 23 the terms of the ICSOP policy. See General Motors Acceptance Corp. v. Brown, 2 Cal. App. 2d 24 646, 650 (1934) (“consideration for an agreement is not adequate when it is a mere promise to 25 perform that which the promisor is already legally bound to do.”) Seeno contends this agreement 26 was supported by adequate consideration, as Seeno allowed ICSOP to control the defense of the 27 Underlying Actions, something it was not required to do under the written ICSOP policy. ECF 1 ICSOP’s payment of defense expenses as incurred. See Prop. Cal. SCJLW One Corp. v. Leamy, [2] 25 Cal. App. 5th 1155, 1165 (2018) (consideration “must actually be bargained for as the 3 exchange for the promise.”) 4 2. Waiver and Estoppel 5 “The rule is well established that the doctrines of implied waiver and of estoppel, based 6 upon the conduct or action of the insurer, are not available to bring within the coverage of a policy 7 risks not covered by its terms, or risks expressly excluded therefrom, and the application of the 8 doctrines in this respect is therefore to be distinguished from the waiver of, or estoppel to assert, 9 grounds of forfeiture.” Advanced Network Inc. v. Peerless Ins. Co., 190 Cal. App. 4th 1054 , 1066 10 (2010). “While an insurer may be estopped to assert grounds of forfeiture of policy benefits, the 11 estoppel doctrine may not be used to create coverage not provided by the policy.” Komorsky v. 12 Farmers Ins. Exch., 33 Cal. App. 5th 960, 972 (2019), as modified on denial of reh’g, (Mar. 29, 13 2019) (internal quotations and citation omitted). 14 ICSOP also moves for summary judgment on Seeno’s breach of contract claims based on 15 waiver and estoppel, arguing these doctrines cannot be used to extend coverage in such a manner. 16 ECF No. 149 at 26. Seeno responds that it is not attempting to create coverage, as ICSOP already 17 owed a duty to reimburse defense costs. ECF No. 193 at 23-24. As this Court previously found, 18 however, the ICSOP policy did not require ICSOP to pay defense expenses as incurred. ECF No. 19 39 at 5-7. Rather, Seeno was entitled reimbursement for defense expenses after final resolution of 20 the matters. Id. Seeno contends that based on ICSOP’s representatives’ statements and actions, 21 the doctrines of waiver and estoppel required ICSOP to pay defense expenses as incurred. ECF 22 No. 42 ¶ 71. But these doctrines cannot “be used to create coverage not provided by the policy.” 23 Komorsky, 33 Cal. App. 5th at 972 . Although ICSOP had a duty to pay defense expenses, the 24 policy specified that its obligation arose only after final resolution. ECF No. 39 at 5-7. The 25 doctrines of waiver and estoppel cannot be used to expand coverage to require payment as 26 incurred. See Komorsky, 33 Cal. App. 5th at 972 . 27 Accordingly, the Court grants ICSOP’s motion for summary judgment on the breach of 1 defense expenses as incurred. See Valley Cmty. Bank v. Progressive Cas. Ins. Co., 854 F. Supp. 2 2d 697, 712 (N.D. Cal. 2012) (granting summary judgment on claims for declaratory relief 3 incidental to claims for breach of contract). 4 C. Breach of the Implied Covenant of Good Faith and Fair Dealing 5 ASIC and ICSOP both move for summary judgment on Seeno’s claims for breach of the 6 implied covenant of good faith and fair dealing. ECF No. 149 21-22, 28. To establish a breach of 7 the implied covenant of good faith and fair dealing the insured must show that (1) benefits due 8 under the policy were withheld, and (2) the reason for withholding the benefits was unreasonable. 9 Align Tech., Inc. v. Fed. Ins. Co., 673 F. Supp. 2d 957, 965 (N.D. Cal. 2009). 10 As explained, Seeno was not entitled to any benefits under the ASIC policy. Because no 11 benefits were due under the ASIC policy, there can be no breach of the implied covenant of good 12 faith and fair dealing. See Cherewick v. State Farm Fire & Cas., 578 F. Supp. 3d 1136 , 1173 13 (S.D. Cal. 2022). Similarly, because ICSOP was not required to pay defense expenses as incurred 14 under the policy, there can be no breach of the implied covenant of good faith and fair dealing 15 based on its failure to do so. See id. Accordingly, the Court grants ASIC and ICSOP’s motions 16 for summary judgment as to Seeno’s fifth and ninth causes of action for breach of the implied 17 covenant of good faith and fair dealing. 18 D. Unfair Competition Law Claims 19 Lastly, both ASIC and ICSOP move for summary judgment on Seeno’s Unfair 20 Competition Law (“UCL”) claims which prohibits “unfair competition” as defined as “any 21 unlawful, unfair, or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200 . 22 Remedies available to private plaintiffs under the UCL “are generally limited to injunctive relief 23 and restitution.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 179 (1999). 24 In the insurance context, to establish a claim under the UCL an insurer must show: (1) they were 25 insured or the intended beneficiary of the insurance policy, (2) the existence of the policy, (3) the 26 insurer’s conduct and that such conduct was an unfair, unlawful or fraudulent business practice, 27 (4) they have no adequate remedy at law, (5) a request for injunctive relief or restitution, as 1 v. Protective Ins. Co., No. 20-cv-530-JLT-CDB, 2023 WL 2602172 at *4 (E.D. Cal Mar. 22, 2 |} 2023). 3 ASIC and ICSOP argue they are entitled summary judgment on the UCL claims as Seeno 4 || is not entitled to any remedy under the UCL. ECF No. 149 at 23-24, 28. First, they contend 5 Seeno is not entitled to injunctive relief as there is no chance of future repetitive harm. ECF No. 6 149 at 28. Seeno “does not address this point and therefore concedes it by [its] silence. Bluestar 7 || Genomics v. Song, No. 21-CV-04507-JST, 2023 WL 8852735 , at *6 (N.D. Cal. Dec. 21, 2023) 8 (citing Lou v. Am. Honda Motor Co., Inc., No. 16-CV-04384-JST, 2022 WL 18539358 , at *2 9 (N.D. Cal. Aug. 26, 2022)). Accordingly, Seeno is not entitled to injunctive relief. See Davidson 10 || v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (the party seeking injunctive relief 11 must show a threat of injury that is “actual and imminent, not conjectural or hypothetical.”) 12 Second, ASIC and ICSOP argue Seeno does not have a claim for restitution, as what it 5 13 really seeks is benefits under the policy. ECF No. 149 at 23-24. Seeno’s opposition does not 14 || dispute this point or specify what restitution it seeks. Thus, the Court grants ASIC and ICSOP’s 3 15 || motion for summary judgment on Seeno’s sixth and tenth causes of action under the UCL. See a 16 || Acad. of Motion Picture Arts & Scis. V. GoDaddy.com, Inc., No. CV 10-03738-AB (CWX), 2015 3 17 || WL 12684340, at *12 (C.D. Cal. Apr. 10, 2015) (granting summary judgment on UCL claim 18 where plaintiff could not show entitlement to restitution or injunctive relief); see also Jenkins v. 19 Cnty. of Riverside, 398 F.3d 1093 , 1095 n.4 (9th Cir. 2005) (“Jenkins abandoned her other two 20 || claims by not raising them in opposition to the County’s motion for summary judgment.”’). 21 CONCLUSION 22 For the foregoing reasons, ASIC’s motion for summary judgment is granted, ICSOP’s 23 || motion for partial summary judgment is granted, and Seeno’s motion for partial summary 24 || judgment is denied. 25 IT IS SO ORDERED. 26 || Dated: January 25, 2024 . 27 JON S. TIGAR 28 nited States District Judge