FILED
NOT FOR PUBLICATION FEB 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CENTURY SURETY COMPANY, an No. 07-56615
Ohio corporation,
D.C. No. CV-05-01548-MJL
Plaintiff-counter-defendant -
Appellee,
MEMORANDUM *
v.
JACQUELINE HELLEIS, individually
and doing business as Flagship Research,
Defendant,
and
350 W.A., LLC, a California limited
liability company,
Defendant-counter-claimant -
Appellant.
CENTURY SURETY COMPANY, an No. 09-55205
Ohio corporation,
D.C. No. 3:05-cv-01548-L-LSP
Plaintiff-counter-defendant -
Appellee,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
350 W.A., LLC, a California limited
liability company,
Defendant-counter-claimant -
Appellant,
DAVID A. BLACKBURN,
Counter-claimant - Appellant,
and
JACQUELINE HELLEIS, individually
and doing business as Flagship Research,
Defendant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted February 3, 2010
Pasadena, California
Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.
This is an appeal by 350 W.A., LLC (“350”) from the entry of summary
judgment in favor of Century Surety Company (“Century”) in Century’s action for
a declaratory judgment that a commercial insurance policy it issued to 350 as
owner of a commercial office building did not provide coverage for the wrongful
2
eviction of one of the tenants. The tenant, Jacqueline Helleis d.b.a. Flagship
Research, had obtained a sizable judgement against 350 for the wrongful eviction.
California law applies.
We reverse the summary judgment on coverage and hold that under the
relevant provision of the policy, where coverage was provided for wrongful
eviction of “premises that a person occupies,” there was coverage for the wrongful
eviction of this tenant, who was a person occupying the premises. Century
attempts to rely on Mirpad, LLC v. California Insurance Guarantee Association,
34 Cal. Rptr. 3d 136 (Ct. App. 2005), to suggest that a business is not a “person”
within the meaning of the policy provision, even though the entity evicted in this
case was an individual doing business in the commercial building insured under
the policy. See Pinkerton’s, Inc. v. Superior Court, 57 Cal. Rptr. 2d 356, 358 (Ct.
App. 1996); Providence Washington Ins. Co. v. Valley Forge Ins. Co., 50 Cal.
Rptr. 2d 192, 194 (Ct. App. 1996). Mirpad involved an eviction of a corporation
and did not cover the situation presented in this case. See Mirpad, 34 Cal. Rptr. 3d
at 144.
We also reject Century’s alternative contention that the general exclusion of
breach of contract injury swallows the specific coverage for wrongful eviction
injury. See Medill v. Westport Ins. Corp., 49 Cal. Rptr. 3d 570, 579-80 (Ct. App.
3
2006). Additionally, we reject Century’s argument that 350’s late tender
substantially prejudiced Century. See Northwestern Title Sec. Co. v. Flack, 85 Cal.
Rptr. 693, 696 (Ct. App. 1970).
Appellant 350 also appeals from the entry of the stipulated judgment
enforcing the terms of the bond agreement requiring 350 to provide collateral for
the appeal bond in the wrongful eviction appeal in state court. The judgment was
in accordance with the parties’ agreement that contemplated entry of the judgment
if 350 was not able to substitute collateral for the bond. 350 failed to demonstrate
why the agreement should not be enforced. The district court’s entry of the
stipulated judgment is affirmed.
AFFIRMED in part and REVERSED in part and REMANDED. Costs
will be awarded to 350 W.A., LLC.
4