RELIEF REQUESTED:
1. Defendant’s Motion for Summary Judgment
2. Plaintiff’s Motion for Summary Adjudication of Duty to Defend

SUMMARY OF COMPLAINT:
The Defendant provided a homeowners insurance policy to the Plaintiff. After the Plaintiff was sued by Henry Baccouche for damages to his olive trees, the Plaintiff tendered the defense of the claim to the Defendant. The Defendant breached the insurance contract by refusing to provide a defense.

CAUSES OF ACTION IN COMPLAINT:
1) Declaratory Relief
2) Breach of Contract
3) Breach of Implied Covenant of Good Faith and Fair Dealing

DISCUSSION:
Trial is set for May 19, 2014.

This hearing concerns the motion for summary judgment filed by the Defendant, Mid-Century Insurance, and the motion for summary adjudication filed by the Plaintiff, Shelly Albert.

1. Defendant’s Motion for Summary Judgment
Under CCP section 473c(o), the Defendant has the burden of providing evidence that demonstrates that it is entitled to summary judgment on the Complaint. The Plaintiff has pleaded three causes of action: 1) declaratory relief, 2) breach of contract, and 3) breach of the implied covenant of good faith and fair dealing. In order to meet its burden of proof under CCP section 437c, the Defendant must provide evidence that an essential element of each cause of action cannot be established.

A review of the Defendant’s motion reveals no discussion or analysis of the first cause of action for declaratory relief. There is no citation to authority regarding the elements or burden of proof. There is no argument directing the Court to the facts that show that the Defendant is entitled to judgment on the first cause of action. Instead, the Defendant’s motion concerns only the second cause of action for breach of contract and the third cause of action for breach of the implied covenant of good faith and fair dealing.

CCP section 437c is a complicated statute and there is little flexibility in the procedural imperatives of the section and, as a result, section 437c is unforgiving. Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 949-950. A failure to comply with any one of its myriad requirements is likely to be fatal to the offending party. Id.
Section 437c does not furnish the trial courts with a convenient procedural means, to which only “lip service” need be given, by which to clear the trial calendar of what may appear to be meritless or weak cases. Id. Any arbitrary disregard of the statutory commands in order to bring about a particular outcome raises procedural due process concerns. Id. The success or failure of the motion must be determined by application of the required step-by-step evaluation of the moving and opposing papers. Id. Because of the drastic nature of the remedy sought, the moving party is held to strict compliance with the procedural requisites. Id.

Here, the Defendant’s motion does not comply with the procedural requirements and permit the Court to engage in the step-by-step evaluation of the papers so that it can find that the Plaintiff cannot establish an essential element of each cause of action pleaded in the Complaint. The Defendant’s memorandum does not discuss or offer any argument regarding the first cause of action. Since the Defendant has not demonstrated that it is entitled to summary judgment on the first cause of action, it has not met its burden of proof on a motion for summary judgment of the entire Complaint.

The Defendant did not seek summary adjudication in the alternative.

Therefore, the Court will deny the Defendant’s motion for summary judgment because the Defendant did not meet its burden of proof.

2. Plaintiff’s Motion for Summary Adjudication
The Plaintiff requests that the Court adjudicate the issue of whether the Defendant had a duty to defend. Under California law, a motion for summary adjudication can seek a determination on whether an insurer has a duty to defend. Transamerica Ins. Co. v. Superior Court (1994) 29 Cal. App. 4th 1705, 1713.

In order to determine whether the Defendant had a duty to provide defend, the Court compares the underlying claim with the coverage in the insurance policy. See Uhrich v. State Farm Fire & Casualty Co. (2003) 109 Cal. App. 4th 598, 610 (comparing a claim with the insurance policy in order to determine whether an insurer breached an insurance policy). The interpretation of an insurance policy is a question of law and the Courts may determine the proper construction. Bluehawk v. Continental Ins. Co. (1996) 50 Cal. App. 4th 1126, 1131.
An insurer must defend its insured if the insurer becomes aware of, or if a lawsuit against its insured pleads, facts which give rise to potential liability under the policy. Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal. 4th 1, 19. The duty arises so long as the facts, which may either be expressed or implied in the complaint or learned from other sources, give rise to a potentially covered claim. Id. Under this rule, the insurer’s duty to defend is broader than its duty to indemnify. Id.
Insurance policies are written in two parts:

1) an insuring agreement, which defines the type of risks being covered, and
2) exclusions, which remove coverage for certain risks which are initially within the insuring clause.

Before considering whether any exclusions apply, a Court must examine the coverage provisions to determine whether coverage exists at all. Collin v. American Empire Ins. Co. (1994) 21 Cal. App. 4th 787, 802-803. When an occurrence is clearly not within the coverage clause, it does not have to be specifically excluded. This analysis is important because it defines the burdens at trial:

1) the insured must prove that the claim is within the scope of coverage under the insurance policy; and
2) the insurer must prove that the claim is excluded by an express exclusions clause, clauses which are narrowly construed. Id.

Accordingly, to prevail, the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential. As mentioned above, the determination whether the insurer owes a duty to defend is made by comparing the allegations of the underlying complaint with the terms of the policy. Facts extrinsic to the underlying complaint give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy. Conversely, where the extrinsic facts eliminate the potential for coverage, the insurer may decline to defend even when the bare allegations in the complaint suggest potential liability. Waller, 11 Cal. 4th at 19.

a. Occurrence
This dispute arises over whether the Plaintiff’s claim included an “occurrence” and whether an exclusion applied to the claim. The Plaintiff had tendered the defense of a claim brought by her neighbor, Henri Baccouche, over an easement and the trimming of nine olive trees. Mr. Baccouche claimed that the Plaintiff had erected a fence through an easement and had damaged nine olive trees. Mr. Baccouche’s original complaint included causes of action for trespass, nuisance, declaratory relief, and quiet title (Albert decl., untabbed exhibit C). Mr. Baccouche added a claim for negligence to his First Amended Complaint and alleged that the Plaintiff has negligently failed to ascertain the property line and has cut the trees beyond any requirement for fire protection purposes (Albert decl., untabbed exhibit F).
The Defendant denied the Plaintiff’s tender of defense on the ground that there was no “occurrence” and that the following exclusions applied: 1) non-owned property, 2) intentional acts, and 3) punitive or exemplary damages (Albert decl., untabbed exhibit I). As noted above, the Court first determines whether coverage exists and then whether any exclusions apply.

A copy of the homeowner’s policy is attached as exhibit A to the Plaintiff’s evidence. The homeowner’s policy provided liability coverage for property damage resulting from an occurrence (Albert decl., untabbed exhibit A, page 33). The policy defined “occurrence” to mean

“an accident, including exposure to conditions, which occurs during the
policy period, and which results in bodily injury, property damage or
personal injury during the policy period.”
(Albert decl., untabbed exhibit A, page 8).

The Plaintiff installed the fence and hired independent contractors to trim the trees. The issue is whether this conduct is an “accident”.
Case law attempting to define “accident” finds that it refers to something out of the usual course of events and which happens suddenly and unexpectedly and without design of the person injured. Delgado v. Interinsurance Exchange of Automobile Club of Southern California (2009) 47 Cal. 4th 302, 309. Accident, as a source and cause of damage to property, within the terms of an accident policy, is an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause. Id.
Here, the installation of the fence and the trimming of trees were not “accidents” because they were not unexpected, unforeseen, or undesigned happenings or consequences. Instead, they were the result of deliberate conduct, e.g., the Plaintiff’s decision to hire independent contractors to trim the trees.
Case law holds that an accident does not occur when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. State Farm General Ins. Co. v. Frake (2011) 197 Cal. App. 4th 568, 579. In Frake, the insured, Patrick Frake, after consuming several beers, struck his friend, John King, in the groin and caused injuries. King filed a complaint against Frake for negligence, assault and battery and intentional infliction of emotional distress. Frake tendered the case to State Farm under a renter’s policy that provided coverage for bodily injury “caused by an occurrence,” which the policy defined as “an accident.” Frake told State Farm that he struck King as part of a consensual game and that he did not intend to injure King.
State Farm filed a declaratory relief action alleging that it had no duty to defend or indemnify Frake because his conduct did not qualify as an accident within the meaning of his insurance policy. The parties filed cross-motions for summary adjudication regarding State Farm’s duty to defend. The trial court concluded that the term “accident” applied to deliberate conduct that resulted in unintentional injury and, as a result, there was a triable issue of fact regarding State Farm’s duty to defend. State Farm filed an appeal to argue that it was an error to find that a deliberate act may qualify as an “accident” if the insured did not intend to cause the resulting injury. The Court of Appeal agreed and reversed the trial court’s judgment.
The Frake case provides the principle that when there is a deliberate act, it is irrelevant whether the insured intended the resulting injury. The Plaintiff claims that she did not intend to cause the injury to the trees and that there was an “unexpected, independent, and unforeseen happening” because the independent contractor cut the trees in excess of what was required by the Fire Department. However, this is not persuasive. The Plaintiff deliberately hired the independent contractor to trim the trees. It is irrelevant that the Plaintiff did not intend to cause injury to the trees. Further, it is not unexpected, independent, or unforeseen that the independent contractor would trim the trees.
The Plaintiff’s argument would apply only if the independent contractor had damaged the trees through an accident, e.g., by inadvertently striking a tree with a motor vehicle. Here, the damage to the trees arose from the expected, dependent, and foreseen happening of the independent contractor performing the task he was hired to do, which was trim the trees.
The Plaintiff also claims that the pleadings support a negligent hiring or supervision claim regarding her hiring and supervision of the independent contractor. However, a review of the pleadings filed by Henri Baccouche reveals no claim for negligent hiring or supervision. Instead, Henri Baccouche pleaded a claim for “Negligent Damage to Trees” on the theory that the Plaintiff failed to ascertain that the trees were on Mr. Baccouche’s property and that the trees were cut beyond any legal requirement for fire protection purposes.
Further, the pleadings do not support any theory of negligent hiring or supervision. California law permits a plaintiff to plead that an employer is liable to the plaintiff for negligently hiring, supervising, or retaining an unfit employee. Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054. The employer’s liability is based upon facts showing that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. Id. There are no allegations in the pleadings of Henri Baccouche that the Plaintiff knew or should have known that hiring the independent contract created a particular risk or hazard. There are no allegations that expressly or impliedly seek damages on the theory that the Plaintiff negligently hired or supervised the independent contractor.
Instead, Henri Baccouche’s claims were based on the theory that the Plaintiff was negligent, e.g., she failed to ascertain the property line and she trimmed the trees more than was necessary. The Plaintiff has not met her burden on her motion for summary adjudication because she has not offered facts that establish that the Defendant had a duty to defend her claim.

Therefore, the Plaintiff has not demonstrated that she is entitled to summary adjudication in her favor on the issue of duty because the facts offered by the Plaintiff do not establish that the claim she tendered to the Defendant was based on property damages resulting from an “occurrence” as defined by the insurance agreement.

b. Exclusion – Intentional Acts
The insurance agreement included an exclusion for property damage which is caused or arises out of an intentional act by or at the direction of the insured (Albert decl., untabbed exhibit A, pages 37 to 38). The exclusion applies if the insured mistakenly believes the insured has the right to engage in the conduct, the damage to the property was not intended or expected or the insured did not understand that injury or damage may result.
As noted above, the claim tendered by the Plaintiff was based on Henri Baccouche’s lawsuit. Henri Baccouche claimed that the Plaintiff has caused damages to his trees by trespassing on his property and cutting his trees. The claim tendered by the Plaintiff was based on intentional acts, i.e., she intentionally hired an independent contractor to trim the trees. This claim was excluded under the intentional acts exclusion because the property damages resulted from acts done at the direction of the Plaintiff, i.e., the tree trimming done by the independent contractor hired by the Plaintiff. The exclusion applies even though the Plaintiff may not have intended or expected the independent contractor to trim the trees beyond what was required by the Fire Department. Further, this exclusion applies whether or not the Plaintiff understood that damage might result to Henri Baccouche’s trees.
The Plaintiff did not meet her burden of proof because she does not offer any facts demonstrating that her claim is not subject to this exclusion.

Therefore, the Plaintiff has not demonstrated that she is entitled to summary adjudication in her favor on the issue of duty because the facts offered by the Plaintiff regarding the claim she tendered to the Defendant indicate that her claim excluded under the intentional acts exclusion.

RULING:
1. DENY Defendant’s motion for summary judgment.
2. DENY Plaintiff’s motion for summary adjudication.