Filed 12/11/23 Helguera v. Mid-Century Insurance Co. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SALVADOR HELGUERA et al., D082231
Plaintiffs and Appellants,
v. (Super. Ct. No. CIVSB2113044)
MID-CENTURY INSURANCE
COMPANY et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Bernardino,
Donald R. Alvarez, Judge. Affirmed.
Shernoff Bidart Echeverria, Michael J. Bidart, Ricardo Echeverria,
Danica Crittenden; Law Offices of Joseph H. Low IV, Joseph H. Low IV; The
Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Appellants.
Woolls Peer Dollinger & Scher, Gregory B. Scher, and H. Douglas Galt
for Defendants and Respondents.
I
INTRODUCTION
Mid-Century Insurance Co. (Mid-Century) issued a homeowners
insurance policy that required it to defend and indemnify its insureds for
third-party bodily injury claims resulting from accidents occurring within the
policy period. The guarantee of coverage is subject to exclusions, one of which
states, “We do not cover bodily injury ... which is caused by, arises out of or is
the result of an intentional act by or at the direction of any insured. ...
[¶] ... [¶] For purposes of application of this exclusion, a plea of guilty ... in a
criminal proceeding, which involves the same acts or activities which are the
basis of a claim for damages against any insured, shall conclusively bar ...
coverage under this policy.” (Bolding omitted.)
During a party at the insureds’ home, the primary policyholder’s 23-
year-old son—an insured under the policy—picked up a loaded firearm he
believed was unloaded, pointed it at an 18-year-old guest, and fatally shot
him. The shooter pleaded guilty to involuntary manslaughter and was
named as a defendant in a wrongful death lawsuit filed by the decedent’s
parents, Salvador Helguera and Natalia Amador. He tendered defense of the
wrongful death lawsuit to Mid-Century, which refused coverage due to the
exclusion quoted above.
The decedent’s parents, acting as assignees of the shooter’s interests
under the policy, then filed the present litigation against Mid-Century and its
affiliates, Farmers Insurance Exchange (Farmers Exchange) and Farmer’s
Group Inc. (Farmers Group), arguing they violated their contractual duty to
defend and indemnify the shooter in the wrongful death lawsuit. The trial
court found the defendants properly denied coverage, sustained demurrers to
the complaint, and entered a judgment of dismissal. We affirm.
2
II
BACKGROUND
The following background is taken from the allegations of the
complaint and the exhibits attached thereto, which we assume are true under
the standard of review applicable to our review of a ruling on a demurrer.
(LeBrun v. CBS Television Studios, Inc. (2021) 68 Cal.App.5th 199, 202.)
A. The Policy
Roberto Sarellano (Roberto) bought a homeowners insurance policy
from Mid-Century, effective for one year beginning December 13, 2014.1
Subject to exclusions, the policy requires Mid-Century to defend and
indemnify its insureds against any bodily injury claim resulting from an
“occurrence,” up to a limit of $500,000 per “occurrence.” The policy defines
“insured” to include Roberto and relatives who permanently reside in his
household. It defines “occurrence” as “an accident ... which occurs during the
policy period, and which results in bodily injury ... during the policy period.”
(Bolding omitted.)
Mid-Century’s duty to indemnify and defend its insureds is subject to
numerous exclusions, which preclude coverage that would otherwise be
available under the policy’s insuring clause. One exclusion (hereafter, the
intentional acts exclusion) appears under the bolded heading, “Intentional
Acts.” In relevant part, it reads:
We do not cover bodily injury ... which is caused by, arises out
of or is the result of an intentional act by or at the direction of
any insured. By way of example this includes but is not
limited to any intentional act or intentional failure to act by
any insured, whether a criminal act or otherwise, where
resulting injury or damage would be objectively expected to a
1 Two persons involved in this case share the surname Sarellano. We
refer to them by first name to avoid confusion. No disrespect is intended.
3
high degree of likelihood, even if not subjectively intended or
expected. This exclusion applies even if ...
[¶] ...
Any insured did not understand that injury or damage may
result ...
[¶] ...
For purposes of application of this exclusion, a plea of guilty,
no contest, or true in a criminal proceeding, which involves the
same acts or activities which are the basis of a claim for
damages against any insured, shall conclusively bar any
bodily injury ... arising or resulting from or caused by such
acts or activities from coverage under this policy. This applies
whether the insured actually admits or admitted guilt by plea.
(Bolding omitted.)
B. The Shooting
On March 28, 2015, Roberto’s 23-year-old son, Alonzo Sarellano
(Alonzo), hosted a party at his parents’ home. Alonzo lived in his parents’
home and was an insured under Roberto’s homeowners insurance policy. The
plaintiffs’ son, 18-year-old Salvador Helguera-Amador, attended Alonzo’s
party.
After consuming alcohol, Alonzo retrieved a firearm from one of the
rooms, pulled the firearm slide to the rear, aimed the firearm at a guest, and
pulled the trigger. The firearm was unloaded and did not fire. However,
Alonzo set the firearm down and, unbeknownst to him, another guest loaded
a round into the firearm’s magazine. Later during the party, Alonzo picked
up the firearm again, aimed it at Helguera-Amador, and pulled the trigger
without confirming whether the firearm was still unloaded. Helguera-
Amador was struck by a bullet and suffered a fatal gunshot wound.
On January 14, 2016, Alonzo pleaded guilty to involuntary
manslaughter for killing Helguera-Amador (Pen. Code, § 192, subd. (b)), and
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he admitted he personally used a firearm in the commission of the offense
(id., § 12022.5, subd. (a)).2
C. The Underlying Lawsuit
On June 22, 2016, plaintiffs Helguera and Amador filed a wrongful
death action against Roberto and Alonzo for the death of their son, alleging
claims for general negligence, negligence per se, and premises liability. Mid-
Century agreed to defend Roberto in the lawsuit, but refused to defend or
indemnify Alonzo. In denying coverage for Alonzo, Mid-Century asserted
Alonzo’s shooting of the firearm was not a covered “occurrence” because it
was “intentional,” not an “accident.” Mid-Century also invoked the
intentional acts exclusion to refuse coverage.
Robert was dismissed from the wrongful death litigation on summary
judgment. However, Alonzo did not respond to the wrongful death complaint
or make an appearance. The plaintiffs requested entry of default, which the
court clerk granted. The plaintiffs then sent Mid-Century an offer to settle
their claims against Alonzo for the policy limit of $500,000, but Mid-Century
rejected the offer. Thereafter, the court entered a default judgment against
Alonzo in an amount exceeding $20 million.
The plaintiffs and Alonzo executed an assignment of rights and
covenant not to execute. Under this agreement, Alonzo assigned the
plaintiffs his rights against Mid-Century and, in exchange, the plaintiffs
agreed not to levy execution on the default judgment.
2 The manslaughter statute defines involuntary manslaughter as “the
unlawful killing of a human being without malice,” either “in the commission
of an unlawful act, not amounting to a felony; or in the commission of a
lawful act which might produce death, in an unlawful manner, or without
due caution and circumspection.” (Pen. Code, § 192, subd. (b).)
5
D. The Present Lawsuit
On April 16, 2021, the plaintiffs, acting as assignees of Alonzo’s interests,
filed the current lawsuit against Mid-Century, Farmers Exchange, and
Farmers Group for breach of contract and bad faith.3 They alleged the
defendants breached the homeowners insurance policy and acted in bad faith
by failing to defend and indemnify Alonzo in the wrongful death action. They
attached several exhibits to their complaint, including the homeowners
insurance policy.
The defendants demurred and asserted coverage was barred by the
intentional acts exclusion—specifically the portion of the exclusion barring
coverage when an insured pleads guilty in a criminal proceeding involving
the same acts or activities forming the basis of a third party’s claim for
damages. The trial court sustained the demurrers based on the intentional
acts exclusion and granted leave to amend.4 The plaintiffs elected not to file
an amended complaint and the court entered judgment for the defense.
The plaintiffs appeal.
III
DISCUSSION
A. Standard of Review
“ ‘In reviewing the sufficiency of a complaint against a general
demurrer, we are guided by long-settled rules.’ [Citation.] We review the
3 Farmers Exchange is an insurance exchange that acts as Mid-
Century’s operating manager, while Farmers Group is the attorney-in-fact for
Mid-Century’s subscribers.
4 Farmers Group did not file a demurrer or a joinder to the other
defendants’ demurrers, but the parties stipulated the arguments in the other
demurrers applied to Farmers Group. Because the parties proceed as if
Farmers Group had filed its own demurrer, we will do the same.
6
operative complaint ‘de novo to determine whether the complaint alleges
facts sufficient to state a cause of action under any legal theory or to
determine whether the trial court erroneously sustained the demurrer as a
matter of law.’ [Citation.] We construe the complaint in a reasonable
manner and assume the truth of properly pleaded factual allegations that are
not inconsistent with other allegations, exhibits, or judicially noticed facts.
[Citation.] We need not accept as true, however, contentions, deductions, or
conclusions of fact or law. [Citation.] Appellant bears the burden of
demonstrating that the trial court erred.” (State ex rel. Edelweiss Fund, LLC
v. JPMorgan Chase & Co. (2023) 90 Cal.App.5th 1119, 1134, fn. omitted.)
B. The Plaintiffs Failed to State A Breach of Contract Cause of Action
The plaintiffs challenge the trial court’s determination that they failed
to allege facts establishing that the defendants breached their obligations
under the homeowners insurance policy by failing to defend or indemnify
Alonzo in the wrongful death action. Their argument for coverage is a fairly
unusual one, so we believe it is helpful to clarify at the outset certain issues
that are often in dispute in insurance litigation, but are uncontested here.
The defendants do not dispute that Alonzo is an “insured” under the
policy and his shooting of Helguera-Amador was an “occurrence”—i.e., an
“accident” occurring within the policy period. Thus, the defendants
effectively concede that there is at least a potential for coverage in the
absence of an applicable exclusion like the intentional acts exclusion.
For their part, the plaintiffs do not dispute that Alonzo pleaded guilty
in a criminal proceeding involving the same acts or activities forming the
basis for their claim for bodily injury damages. In other words, they do not
contest that the intentional acts exclusion was satisfied according to its
express terms. Moreover, the plaintiffs concede the intentional acts
7
exclusion, taken as a whole, is conspicuous, plain, and clear. (See 24th &
Hoffman Investors, LLC v. Northfield Insurance Co. (2022) 82 Cal.App.5th
825, 834 [“ ‘[T]o be enforceable, any provision that takes away or limits
coverage reasonably expected by an insured must be “conspicuous, plain and
clear.” ’ ”].) Thus, the plaintiffs accept that the intentional acts exclusion
applies—and precludes coverage—so long as the exclusion is valid.
This brings us to the plaintiffs’ argument on appeal. The plaintiffs
contend the intentional acts exclusion is facially invalid because it is so
overbroad that it makes the policy’s promise of coverage for negligence claims
illusory. This argument requires some explanation. As a general matter, an
insurance policy that promises coverage for “accidents,” like the policy at
issue here, guarantees coverage for claims predicated on an insured’s
negligence. (Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co.
(2018) 5 Cal.5th 216, 221 [“ ‘[T]he term “accident” is more comprehensive
than the term “negligence” and thus includes negligence’ ”], quoting Safeco
Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 765 (Safeco).)
But, according to the plaintiffs, the promise of coverage for negligence
claims in Mid-Century’s policy is illusory because the intentional acts
exclusion is so far-reaching it precludes coverage in all negligence cases. As
noted, the exclusion applies when a bodily injury claim “is caused by, arises
out of or is the result of an intentional act ... of any insured,” irrespective of
whether the insured intended harm or knew, or should have known, that
bodily injury could occur. (Bolding omitted.) In the plaintiffs’ view, Mid-
Century can invoke the exclusion to preclude coverage for any negligence
claim, since “ ‘negligence’ in California is a breach of the duty imposed by
Civil Code section 1714, subdivision (a), which requires everyone to exercise
‘ordinary care or skill in the management of his or her property or person,’ ”
8
and “[i]t is impossible to ‘manage’ one’s person or property without acting
intentionally at some point.” Stated differently, the plaintiffs contend every
negligence claim against an insured is caused by, arises out of, or is the result
of an insured’s intentional act—and thus Mid-Century could call upon the
exclusion to preclude coverage whenever its insureds are sued for negligence.
In making this argument, the plaintiffs liken the promise of coverage in
Mid-Century’s policy to the promise of coverage that was at issue in Safeco, a
case involving similar facts. In Safeco, a teenager procured a firearm from
his mother’s coat pocket, which he believed to be unloaded—then pulled the
trigger and fatally shot a friend. (Safeco, supra, 26 Cal.4th at p. 761.) The
juvenile court sustained a wardship petition alleging the shooter perpetrated
involuntary manslaughter. (Ibid.) Thereafter, the decedent’s parents filed a
wrongful death action against the shooter and his parents, who tendered
defense of the case to Safeco, the insurer under their homeowners insurance
policy. (Ibid.) The policy promised coverage for bodily injury caused by an
“occurrence,” which it defined as an “accident” resulting in bodily injury
during the policy period. (Id. at p. 762.) Safeco undertook the defense under
a reservation of rights, but filed a case against its insureds and the decedent’s
parents seeking a declaration that it had no duty to defend or indemnify its
insureds because the policy had an exclusion for “illegal acts,” which excluded
coverage for “liability for bodily injury ‘arising out of any illegal act
committed by or at the direction of an insured.’ ” (Id. at pp. 761–762.)
The Supreme Court concluded Safeco had a contractual duty to defend
or indemnify its insureds, despite the “illegal acts” exclusion. The court first
determined it could not interpret the “illegal acts” exclusion narrowly to
preclude coverage only for violations of criminal laws, since the policy did not
9
expressly state as much.5 (Safeco, supra, 26 Cal.4th at pp. 763–764 [“we
cannot read into the policy what Safeco has omitted”].) Then, the court
rejected an expansive construction of the exclusion that would have denied
coverage for a violation of any law, criminal or civil. (Id. at p. 764.) The court
reasoned this construction would be “so broad as to render the policy’s
liability coverage practically meaningless.” (Ibid.) As noted, Safeco’s policy
promised coverage for bodily injury caused by an “occurrence” or “accident,”
which encompassed negligence claims. (Id. at pp. 764–765.) However, the
duty to exercise ordinary care for negligence purposes is imposed by law, so
“[a] violation of that duty is ... a violation of law. ... An insured’s negligent
act, being a violation of law and therefore an illegal act, would thus not be
covered under Safeco’s policy excluding coverage for an insured’s illegal acts.”
(Id. at p. 764.) According to the court, Safeco’s promise of coverage for bodily
injury claims caused by negligence “would be rendered illusory if ... [the
court] were to construe the phrase ‘illegal act,’ as contained in the policy’s
exclusionary clause, to mean violation of any law, whether criminal or civil.”
(Id. at p. 765.) Because the “illegal acts” exclusion could not reasonably be
5 The insurance policy at issue in Safeco did not include an express
criminal act exclusion—i.e., a provision excluding an insured’s criminal acts
from coverage. (Safeco, supra, 26 Cal.4th at p. 763.) Instead, it contained an
illegal act exclusion, which excluded an insured’s illegal acts from coverage.
(Ibid.) Further, in contrast to the insurance policy at issue in the present
case, the Safeco policy did not expressly exclude coverage where, as here, an
insured pleaded guilty in a criminal proceeding involving the same acts or
activities which were the basis of a claim for damages against the insured.
10
construed either broadly or narrowly, the court invoked Civil Code
section 1653,6 and “rejected” the exclusion as “invalid.” (Id. at p. 766.)
To determine whether the intentional acts exclusion in Mid-Century’s
homeowners insurance policy is impermissibly overbroad, thus rendering the
promise of coverage in the policy illusory, we apply ordinary principles of
contractual interpretation. (See Yahoo Inc. v. National Union Fire Ins. Co.
(2022) 14 Cal.5th 58, 67.) “ ‘ ‘While insurance contracts have special features,
they are still contracts to which the ordinary rules of contractual
interpretation apply.” [Citation.] Thus, “the mutual intention of the parties
at the time the contract is formed governs interpretation.” [Citation.] If
possible, we infer this intent solely from the written provisions of the
insurance policy. [Citation.] If the policy language “is clear and explicit, it
governs.” ’ ” (Ibid.) “ ‘If the terms are ambiguous [i.e., susceptible of more
than one reasonable interpretation], we interpret them to protect “ ‘the
objectively reasonable expectations of the insured.’ ” ’ ” (Ibid.)
“In order for a contract to be valid, the parties must exchange promises
that represent legal obligations. [Citation.] An agreement is illusory and
there is no valid contract when one of the parties assumes no obligation.”
(Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 94–95; Third
Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798, 804, fn. 4 [“ ‘By the
phrase “illusory promise” is meant words in promissory form that promise
nothing. They do not purport to put any limitation on the freedom of the
alleged promisor.’ ”], quoting 2 Corbin on Contracts (rev. ed. 1995) § 5.28,
p. 142; see also French Laundry Partners, LP v. Hartford Fire Ins. Co. (N.D.
Cal. 2021) 535 F.Supp.3d 897, 904 [under California law, “[a]n insurance
6 Civil Code section 1653 provides, “Words in a contract which are wholly
inconsistent with its nature, or with the main intention of the parties, are to
be rejected.”
11
policy provision is only illusory where it results in a ‘complete lack of any
policy coverage.’ ”], italics added.) Under the rules of contractual
interpretation, “we must interpret the provisions of a contract to avoid
rendering the instrument ‘illusory.’ [Citation.] Contracts of insurance do not
enjoy any special exemption from that basic principle.” (John’s Grill, Inc. v.
The Hartford Financial Services Group, Inc. (2022) 86 Cal.App.5th 1195,
1219 (John’s Grill); see Brandwein v. Butler (2013) 218 Cal.App.4th 1485,
1507 [“when interpreting a contract, we strive to interpret the parties’
agreement to give effect to all of a contract’s terms, and to avoid
interpretations that render any portion superfluous, void or inexplicable”].)
Applying these rules of contractual interpretation here, we conclude the
intentional acts exclusion is not so exceedingly broad that it renders the
promise of coverage for negligence claims illusory. At base, the plaintiffs’
overbreadth argument rests on the assumption that a negligence claim
against an insured always is caused by, arises out of, or is the result of an
insured’s intentional act. Of course, “[i]t is true that an [insured’s]
intentional act may be an element of negligence,” State Farm Fire & Casualty
Co. v. Dominguez (1982) 131 Cal.App.3d 1, 4—but not necessarily so.
Consider the legal duty requirement, which is an essential element of
any negligence claim. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213
(Brown).) Civil Code section 1714 provides a “ ‘general rule,’ ” governing legal
duty. (Brown, at p. 213.) The statute “imposes a general duty of care on a
defendant only when it is the defendant who has ‘ “created a risk” ’ of harm to
the plaintiff, including when ‘ “the defendant is responsible for making the
plaintiff’s position worse.” ’ ” (Id. at p. 214.) Ordinarily, it does not “impose
the same duty on a defendant who did not contribute to the risk that the
plaintiff would suffer the harm alleged.” (Ibid.) “Generally, the ‘person who
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has not created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another’ from that peril.” (Ibid.)
However, there are “a number of exceptions” to the no-duty-to-protect
rule, including the “special relationship” exception: “In a case involving harm
caused by a third party, a person may have an affirmative duty to protect the
victim of another’s harm if that person is in what the law calls a ‘special
relationship’ with either the victim or the person who created the harm.”7
(Brown, supra, 11 Cal.5th at p. 215.) “Under [these] circumstances, a
defendant may have an affirmative duty to protect the plaintiff from harm at
the hands of a third party, even though the risk of harm is not of the
defendant’s own making.” (Ibid., italics added.) Further, it is black-letter
law that a defendant can breach a legal duty, and thus “be negligent[,] by
acting or by failing to act.” (Raven H. v. Gamette (2007) 157 Cal.App.4th
1017, 1025, italics added.) Thus, at least in special relationship cases, a
bodily injury claim may be based on the breach of an insured’s legal duty of
care even though the insured did not undertake an affirmative act that made
or contributed to the plaintiff’s injury. Such claims could fall within the
scope of coverage under the policy, unaffected by the intentional acts
exclusion.
7 “A special relationship between the defendant and the victim is one
that ‘gives the victim a right to expect’ protection from the defendant, while a
special relationship between the defendant and the dangerous third party is
one that ‘entails an ability to control [the third party’s] conduct.’ [Citation.]
Relationships between parents and children, colleges and students,
employers and employees, common carriers and passengers, and innkeepers
and guests, are all examples of special relationships that give rise to an
affirmative duty to protect. [Citations.] The existence of such a special
relationship puts the defendant in a unique position to protect the plaintiff
from injury.” (Brown, supra, 11 Cal.5th at p. 216.)
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Moreover, as Mid-Century notes, the intentional acts exemption applies
only when bodily injury “is caused by, arises out of or is the result of” an
insured’s intentional act, a causal limitation on the types of claims to which
the exemption applies. The plaintiffs disagree, arguing the exemption’s use
of the term, “arises out of,” makes the exemption so expansive that Mid-
Century can invoke it whenever an insured engages in “some type of
intentional conduct ... somewhere in the causal chain leading to the
[claimant’s] harm.”8 In light of the interpretative rule requiring us to read
the policy to avoid an illusory promise wherever reasonably possible, we
disagree with the plaintiffs’ interpretation of the intentional acts exemption.
“California courts have consistently given a broad interpretation to the
terms ‘arising out of’ or ‘arising from’ in various kinds of insurance
provisions.” (Acceptance Ins. Co. v. Syufy Enterprises (1999) 69 Cal.App.4th
321, 328.) In this context, “ ‘the term “arising out of” links a factual situation
with the event creating liability and does not import any particular standard
of causation or theory of liability into an insurance policy. [Citation.]
Rather, “ ‘ “ ‘[a]rising out of’ are words of much broader significance than
‘caused by.’ They are ordinarily understood to mean ‘originating from[,]’
‘having its origin in,’ ‘growing out of’ or ‘flowing from’ or in short, ‘incident to,
or having connection with’ ....” ’ ” ’ ” (Health Net, Inc. v. RLI Insurance Co.
(2012) 206 Cal.App.4th 232, 262.)
Even so, the policy term, “arising out of,” does not simply mean any
distant or remote causal relationship whatsoever—no matter how feeble that
connection might be. At the least, the term “requires more than ‘but for’
8 Similarly, the plaintiffs argue, “the ‘intentional acts’ exclusion in Mid-
Century’s policy will always be triggered by whatever intentional act either
began or was included in the causal chain that led to the harm at issue in the
insurance claim.” (Italics added.)
14
causation or ‘mere presence.’ ” (Fireman’s Fund Insurance Companies v.
Atlantic Richfield Co. (2001) 94 Cal.App.4th 842, 849; see Transcontinental
Ins. Co. v. Insurance Co. of the State of Pennsylvania (2007) 148 Cal.App.4th
1296, 1308 [“Although the phrase ‘ “arising out of” ’ should be broadly read to
require only a minimal causal connection, it requires more than ‘ “but for” ’
causation.”]; accord Target Corp. v. Golden State Ins. Co. Ltd. (2019) 41
Cal.App.5th 13, 19–20 [additional insured endorsement requiring insurance
carrier to provide coverage to retailer for claims “arising out of ‘[supplier’s]
products’ ” did not compel carrier to provide coverage to retailer in lawsuit
alleging retailer mislabeled supplier’s products, even though the existence of
the products themselves was seemingly a but-for cause of the mislabeling];
Kramer v. State Farm Fire & Casualty Co. (1999) 76 Cal.App.4th 332, 334,
340–341 [landlords’ rental dwelling insurance policies requiring carrier to
provide coverage for claims “arising ‘from the ownership, maintenance, or use
of the insured premises’ ” did not require carrier to defend landlords against
claims of sexual molestation that occurred on the insured properties, given
that the “required causal connection between the use of those particular
premises and the tortious activity causing the injury ... was lacking”].)
All of this is to say that Mid-Century cannot simply invoke the
intentional acts exclusion any time an insured—at some point in the long
distant past—undertook some intentional act bearing no causal relationship,
or virtually no causal relationship, to the negligence claim for which coverage
is sought. This feature, as well as the fact that some negligence claims may
be predicated on a defendants’ failure to act or protect, convince us that the
intentional acts exclusion does not withdraw all, or “virtually all,” coverage
for bodily injury claims sounding in negligence. (Energy Ins. Mutual Limited
v. Ace American Ins. Co. (2017) 14 Cal.App.5th 281, 306; see also Medill v.
15
Westport Ins. Corp. (2006) 143 Cal.App.4th 819, 836 [insuring clause was not
illusory, since “not every lawsuit that could conceivably be brought against
[the insureds] would necessarily” fall outside the scope of coverage].)
Moreover, irrespective of whether the promise of coverage may seem
illusory to the plaintiffs in some theoretical sense, case law instructs that we
must interpret insuring agreements with an eye to the reasonable
expectations of the insured.9 (See Minkler v. Safeco Ins. Co. of America
(2010) 49 Cal.4th 315, 322; John’s Grill, supra, 86 Cal.App.5th at p. 1224
[“the test for illusory coverage must focus on objective reality and the
insured’s reasonable expectations of coverage”].) “The proper inquiry is:
Would reasonable insureds expect their homeowners policy to protect them
against liability for accidental injury or death occurring in their home?”
(Safeco, supra, 26 Cal.4th at p. 766.) In Safeco, the answer to that question
was “yes,” under the facts of the case and the language of the insuring
document. (Ibid.) Here, by contrast, the answer to that question is “no.”
Indeed, the facts of the present case are strikingly similar to those
presented in 20th Century Ins. Co. v. Stewart (1998) 63 Cal.App.4th 1333
(Stewart). In that case, 19-year-old Matthew Guglietti and his friends held a
party at Guglietti’s home. (Id. at p. 1335.) During the party, Guglietti drank
9 This “reasonable expectations” standard resembles the standard that is
used by courts in other states, some of which will enforce or modify an
insurance agreement according to the reasonable expectations of the insured
even if the promise of coverage in the agreement is illusory. (See, e.g.,
Westfield Ins. Co. v. William B. Burford Printing Co., Inc. (S.D. Ind. 2020)
467 F.Supp.3d 632, 643 [under Indiana law, “[a]n illusory coverage analysis
requires two steps. First, it must be established that the policy is, in fact,
illusory. Second, if it is illusory, the [c]ourt must determine if the insured
had a reasonable expectation that the policy would provide the requested
coverage.”]; Marks v. Houston Cas. Co. (Wis. 2016) 369 Wis.2d 547, 583
[“ ‘Where a policy’s purported coverage is illusory, the policy may be reformed
to meet an insured’s reasonable expectations of coverage.’ ”].)
16
alcohol, retrieved a .38-caliber revolver from his parent’s bedroom, loaded a
bullet into the chamber, and pulled the trigger twice—once at a friend and
once at his own head. (Ibid.) The revolver did not fire with either trigger
pull. (Ibid.) As the party continued, Guglietti drank more alcohol and
smoked marijuana, pointed the revolver at another friend, Govinda Sean
DiGeronimo, and pulled the trigger—this time causing the revolver to
discharge and kill DiGeronimo. (Ibid.) Guglietti pleaded guilty to
manslaughter in connection with the incident. (Id. at pp. 1335–1336.)
In a subsequent wrongful death lawsuit filed by DiGeronimo’s mother,
Guglietti tendered his defense to the insurance carrier that issued his
parents their homeowner’s insurance policy. (Stewart, supra, 63 Cal.App.4th
at p. 1336.) The carrier assumed the defense under a reservation of rights
and settled with DiGeronimo’s mother, with the settlement amount
contingent on a judicial determination of whether her claim was covered by
the carrier’s policy. (Ibid.) That policy contained an exclusion that applied to
“ ‘[b]odily injury or property damage which [was] a foreseeable result of an
intentional or criminal act of any insured or which [was] in fact intended by
any insured.’ ” (Ibid.) The trial court found no coverage due to the exclusion,
and the Stewart court affirmed the judgment on the same grounds. (Ibid.)
The Stewart court determined that the exclusion applied and was
unambiguous under the facts of the case—but even if the exclusion was
ambiguous, the insured had no reasonable expectation of coverage. (Stewart,
supra, 63 Cal.App.4th at p. 1338.) In so holding, the court rejected a claim
that Guglietti’s act of manslaughter was “based on and really nothing more
than negligence and ... an insured would reasonably expect the [p]olicy would
cover injury caused by an insured’s negligence.” (Id. at pp. 1338–1339.) As
the court explained, this characterization “trivialize[d] [Guglietti’s] conduct.
17
This [was] not a case in which a revolver was negligently mishandled and
fired by mistake or inadvertence. Guglietti deliberately and intentionally
pointed the revolver at DiGeronimo and deliberately and intentionally pulled
the trigger. ... Presumably his purpose was not to injure DiGeronimo;
nevertheless, he killed him after having placed one bullet in the revolver and
firing twice without the bullet reaching the chamber. His conduct was with
such disregard for human life that it could be considered to have been
committed with implied malice and therefore have constituted second degree
murder. [¶] Under these circumstances ... the insured could not reasonably
have expected the [p]olicy’s coverage for injury caused by negligence to have
covered Guglietti’s criminal act.” (Id. at p. 1339.)
Under the facts of the present case, we similarly conclude that the
insured would have no reasonable expectation of coverage under the
homeowner’s insurance policy at issue. Specifically, we conclude that the
insured would not reasonably expect Alonzo’s conduct—his act of consuming
alcohol, intentionally aiming a firearm at another person, and intentionally
pulling the trigger on that firearm, followed by his guilty plea to a criminal
offense—would both fall within the scope of coverage for an “accident,” and
outside the exclusion barring coverage where, as here, an insured “plea[ds] []
guilty ... in a criminal proceeding[] ... involv[ing] the same acts or activities
which are the basis of [the] claim for damages against [the] insured ....”
Because the promise of coverage in Mid-Century’s homeowners
insurance policy is not illusory, and the insured would not reasonably expect
coverage under Mid-Century’s policy, the trial court properly sustained the
defendants’ demurrers to the plaintiffs’ breach of contract cause of action.
18
C. Plaintiffs Failed to State A Bad Faith Cause of Action
Plaintiffs also challenge the trial court’s implied determination that
they failed to plead facts sufficient to state a cause of action for breach of the
implied covenant of good faith and fair dealing—i.e., for bad faith.
“[I]f there is no potential for coverage and, hence, no duty to defend
under the terms of [an insurance] policy, there can be no action for breach of
the implied covenant of good faith and fair dealing because the covenant is
based on the contractual relationship between the insured and the insurer.”
(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36 (Waller), italics
omitted; 1231 Euclid Homeowners Association v. State Farm Fire & Casualty
Co. (2006) 135 Cal.App.4th 1008, 1021 (Euclid) [“Since [insurer] was not in
breach of contract and owed no policy benefits to [insured], its failure to pay
such benefits cannot serve as a basis for a claim for bad faith.”].)
Here, the defendants owed no duty to defend or indemnify Alonzo in
the wrongful death action because the intentional acts exclusion was
triggered according to its terms and, as discussed above, the scope of the
exclusion did not make the promise of coverage illusory. Because the
defendants had no duty to extend coverage to Alonzo, the trial court properly
sustained the demurrers to the plaintiffs’ bad faith cause of action. (Waller,
supra, 11 Cal.4th at p. 36; Euclid, supra, 135 Cal.App.4th at p. 1021.)
19
IV
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on
appeal.
McCONNELL, P. J.
I CONCUR:
CASTILLO, J.
20
Dato, J., Concurring.
I have serious concern that the “intentional acts” exclusion in this Mid-
Century homeowners insurance policy—including but not limited to injury or
damage arising from “any intentional act or intentional failure to act by any
insured”—is written so broadly that it could be invoked to refuse coverage for
the garden variety negligence claims that every insured homeowner seeks to
protect against. As the majority opinion recognizes, however, even where a
policy is deemed illusory in some abstract or theoretical sense, insureds must
still demonstrate that coverage for the claimed injury or damage would be
consistent with their reasonable expectations. (Maj. opn., ante, at p. 16; see
Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 767.) Here, the specific
example referenced in the intentional acts exclusion—the insured’s plea of
guilty in a criminal proceeding—conclusively negated any reasonable belief
that this policy provided coverage for this injury. On that basis, I concur in
the affirmance of the judgment.
DATO, J.
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