Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG-06-267990
Haerle, J.
I. INTRODUCTION
Appellants Barry and Regina Bronk, homeowners in San Leandro, appeal from summary judgment granted their real property insurer, Newport Insurance Co. (Newport). The Bronks had sued Newport for breach of contract and breach of the covenant of good faith and fair dealing because of its refusal to defend them in an action brought against them by their next-door neighbors to quiet title and for declaratory and injunctive relief, nuisance, and intentional infliction of emotional distress. The neighbors’ action arose from a long-standing dispute regarding rights to use a paved driveway which was partially on the Bronks’ property. We affirm the trial court’s grant of summary judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellants, the Bronks, have lived at 550 Haas Avenue in San Leandro since 1998. One of their neighbors, whose house is directly behind the Bronks, with its entrance on Arbor Drive, a cross-street, are a threesome of Brian Libow, Katharine Wellman, and Doreen Wellman, collectively referred to in both parties’ briefs as “the Libows.” The rear of the Bronks’ house forms a physical barrier on the south side of a paved driveway used by the Libows and leading to a detached garage at the rear of their property. That driveway provides no access to the Bronks’ home or backyard and, allegedly, was used from 1954 until 2003 by the Libows and their predecessors to park their cars and access their garage without any interruption by or objection from the Bronks or any previous owners of 550 Haas Avenue.
However, again according to a complaint in the Libows’ underlying action, some or all of that driveway apparently––or at least according to the Bronks––was on the Bronks land and, in late 2003, they allegedly commenced a campaign to stop or discourage use of the driveway by the Libows. This campaign allegedly included placing garbage bins on the driveway, moving their car closer to the portion of the driveway that was on the Libows property, bending the Libows’ car mirrors, throwing cardboard onto the driveway, and otherwise engaging in a campaign of “harassing and intimidating” the Libows.
According to the Libows’ first amended complaint against the Bronks, the latter took the position, based on an alleged survey of the driveway, that “six feet” of that paved driveway was actually on the Bronks’ property. The court that eventually tried the underlying action found the measurement to be a bit different, however. It held that the Libows had “acquired a prescriptive easement for the use of that portion of the [paved driveway] extending twenty-four inches” onto the Bronks’ property. We thus interpret the record to mean that, in fact, the Libows’ paved driveway extended two feet, not six, onto the Bronks’ property.
In March 2005, the Libows filed a complaint in Alameda County Superior Court against the Bronks. The complaint alleged, in general, the foregoing campaign and asserted five causes of action, namely: (1) for declaratory relief regarding “the respective rights and duties to the driveway”; (2) to quiet title, based on an alleged prescriptive right of an easement over any portion of the driveway that was on the Bronks property; (3) intentional infliction of emotional distress based on the various alleged actions of the Bronks; (4) private nuisance; and (5) for injunctive relief. A first amended complaint, the operative one for purposes of this case, was filed on April 1, 2005. That complaint alleged the same five causes of action.
On April 8, 2005, the Bronks’ counsel tendered defense of the Libows’ action to their homeowners insurer, Newport. At that time, Newport had issued a policy of insurance to the Bronks which contained the following pertinent provisions:
“Definitions
“In this policy, . . . certain words and phrases are defined as follows: . . .
“5. ‘Occurrence’ means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
“a. ‘Bodily injury’; or
“b. ‘Property damage.’ . . .
“Section II. - Liability Coverages
“Coverage E - Personal Liability
“If a claim is made or a suit is brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which this coverage applies, we will:
“1. Pay up to our limit of liability for the damages for which the ‘insured’ is legally liable. Damages including prejudgment interest awarded against the ‘insured’; and
“2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decided is appropriate. . . .”
On May 5, 2005, Newport replied to the Bronks’ counsel, denying coverage. Among other things, its response asserted that the Libows’ complaint did not allege any bodily injury or property damage arising from an “occurrence” as that term in defined in the policy, and that all the damage asserted in that complaint arose from alleged intentional actions by the Bronks.
The Bronks’ counsel asked Newport to reconsider, based on her suggestion that the Bronks did not, in fact, intend to harm their neighbors, and thus could be found to have acted negligently, rather than intentionally. Newport did not change its mind.
In February 2006, the action by the Libows against the Bronks was tried to a court. In May 2006, the court entered judgment in favor of the Libows on their quiet title, declaratory relief and injunctive relief claims, holding that they had, indeed, secured a prescriptive easement to use the driveway. However, it ruled in favor of the Bronks on the Libows’ nuisance and intentional infliction of emotional distress claims.
On May 3, 2006, the Bronks sued Newport in Alameda County Superior Court for, as noted earlier, breach of contract and breach of the implied covenant of good faith and fair dealing. The action was, as noted above, based on the theory that Newport wrongfully failed to defend them in the underlying action brought by the Libows.
For reasons we frankly do not understand, this complaint is not included in the record before us.
On July 27, 2006, Newport moved for summary judgment based, inter alia, on its theory that the actions of the Bronks alleged in the Libows’ action were entirely intentional and, hence, not covered by their homeowners’ policy. The Bronks opposed the motion on the basis, in part, that Newport had a duty to defend in particular the nuisance and intentional infliction of emotional distress claims, because they might have been found liable thereunder for negligent conduct. On October 18, 2006, after oral argument a few days earlier, the trial court granted the motion on the basis that there was “no triable issue of material fact as to whether there was an ‘occurrence’ as defined in the policy at issue.”
Judgment in favor of Newport was entered on October 30, 2006. The Bronks filed a timely notice of appeal.
III. DISCUSSION
The parties agree, and are correct in agreeing, that our standard of review in a case such as this is de novo. (See, e.g., Northland Ins. Co. v. Briones (2000) 81 Cal.App.4th 796, 801-802 (Briones).)
On appeal, appellants assert that they are not contending that Newport had a duty to defend them from the Libows’ causes of action for declaratory or injunctive relief, or to quiet title. But they do contend that such a duty existed as to the Libows’ other two causes of action, i.e., for nuisance and intentional infliction of emotional distress. They assert that such was their position in the superior court, also. However, the record before us does not support that assertion. To be sure, in their memorandum of points and authorities in opposition to Newport’s motion for summary judgment in the superior court, the Bronks stress that their arguments are mainly addressed to the “nuisance and trespass” claims of the Libows. But nowhere in that memorandum––or any of their other opposition papers in the superior court––do we find any concession by the Bronks that there was no coverage for the three other causes of action asserted against them by the Libows.
In any event, the Libows asserted no cause of action for “trespass” in their first amended complaint and, indeed, we are unable to find that term used anywhere in either of the two critical causes of action in that pleading.
We will, nevertheless, concentrate on the nuisance and intentional infliction of emotional distress causes of action in our ensuing analysis.
That analysis begins, as it must, with some general rules of law applicable to actions by an insured against his, her or its insurer for failure to defend them from an action of the sort brought against the Bronks by the Libows. In Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1 (Waller), our Supreme Court laid out the most essential of these principles as follows: “When determining whether a particular policy provides a potential for coverage and a duty to defend, we are guided by the principle that interpretation of an insurance policy is a question of law. [Citation.] The rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it. [Citations.] Thus, in determining whether allegations in a particular complaint give rise to coverage under a CGL policy, courts must consider both the occurrence language in the policy, and the endorsements broadening coverage, if any, included in the policy terms. [Citation.] [¶] The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give effect to the ‘mutual intention’ of the parties. ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” (id., § 1644), controls judicial interpretation. (Id., § 1638.)’ [Citations.] A policy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. [Citation.] But language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract. [Citation.] Courts will not strain to create an ambiguity where none exists. [Citation.] [¶] These well-established precepts of insurance coverage guide us in our determination of whether a particular policy requires a liability insurer to defend a lawsuit filed by a third party against the insured. It has long been a fundamental rule of law that an insurer has a duty to defend an insured if it becomes aware of, or if the third party lawsuit pleads, facts giving rise to the potential for coverage under the insuring agreement. [Citations.] This duty, which applies even to claims that are ‘groundless, false, or fraudulent,’ is separate from and broader than the insurer’s duty to indemnify. [Citation.] However, ‘ “where there is no possibility of coverage, there is no duty to defend . . . .’” [Citation.] Gray and its progeny have made it clear that the determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Facts extrinsic to the complaint give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy. [Citations.] [¶] 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. [Citations.] This is because the duty to defend, although broad, is not unlimited; it is measured by the nature and kinds of risks covered by the policy. [Citations.]” (Waller, supra, at pp. 18-19; see also, Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 879-880.)
The issue in this case is whether, under the provisions of the homeowners’ policy quoted above, the claims asserted in the Libows’ first amended complaint against the Bronks, especially those raised by the nuisance and intentional infliction of emotional distress causes of action, potentially involved an “occurrence,” i.e., an “accident” as those terms are used in the policy or, rather, allegations of deliberate or intentional acts on the part of the Bronks. To answer that question, a more detailed examination of the allegations of the Libows’ complaint is pertinent.
The Libows’ cause of action for “Intentional Infliction of Emotional Distress” is the third cause of action in the operative complaint; their “Private Nuisance” cause of action is number four. Both causes of action incorporate all of the preceding allegations in that complaint. Thus, both incorporate the allegations of the first and second causes of action, i.e., those for declaratory relief and to quiet title, and the nuisance cause of action incorporates the allegations of the immediately preceding intentional infliction of emotional distress claim. This being the case, the result is that the two causes of action the Bronks now claim to be the ones triggering an obligation by Newport to defend the Libows’ claim against them, include numerous claims of intentional (indeed allegedly “malicious”) actions by the Bronks, but absolutely no hint of anything resembling an “accident.”
Thus, and proceeding by way of successive paragraphs of the operative complaint, in their first cause of action for, again, declaratory relief, the Libows alleged that the Bronks had “erected a permanent obstruction (an approximately 37 foot long wooden fence, attached to metal poles set into the concrete) on the driveway and threaten to continue to obstruct Plaintiffs’ use of the remainder of the driveway.” After, as already noted, incorporating this allegation into their third cause of action for intentional infliction of emotional distress, the Libows then alleged that the Bronks “began harassing and intimidating Plaintiffs by, among other things, placing garbage bins on Plaintiff’s [sic] driveway next to the rear of their house” and “deliberately and maliciously [moving those bins] out from the rear of their house and approximately six feet towards the middle of [the driveway].”
That cause of action then continues with similar allegations, e.g.: (1) “Defendants deliberately and hostilely took such action in an effort to prevent Plaintiffs from parking where they had parked in their driveway for 16 years . . . .”; (2) “Defendants threw cardboard on Plaintiffs’ driveway and bent back the outside mirrors on the passenger side of two of Plaintiffs’ cars that were parked in the driveway”; (3) “Defendants continued their harassment [by yelling] at Plaintiff Brian Libow in the presence of his son, threatening to call the police if plaintiff ever ‘touched’ their property again . . . [and] sent hateful and retaliatory letters to Plaintiffs [and] refused to empty their garbage and recycle bins for a two week period . . . .”; (4) deliberately and hostilely placed traffic cones on the remainder of the driveway . . . .; (5) “continued their harassment by constantly taking pictures of plaintiffs, staring at them, lowering plaintiffs’ basketball hoop, making loud noises while emptying garbage . . . .” (6) “Defendants’ continuing course of conduct in such a manner is deliberate, intentional, hostile, retaliatory, and of such a nature as to harass reasonable persons in the enjoyment of their rights”; and (7) “[t]he actions set forth above . . . were and are willful and knowingly in defiance of Plaintiffs’ repeated protests [and] was oppressive and malicious . . . .”
The Libows’ fourth cause of action for “Private Nuisance” incorporated all of the foregoing and then continued in the same vein, but emphasizing a specific act by the Bronks: “Defendants erected a greenhouse in their backyard that is physically attached to Plaintiffs’ garage. The side wall of the greenhouse is constructed of non-safety glass facing the driveway, in such a manner as to present a safety hazard to Plaintiffs . . . [and] constitutes a fire hazard, is a nuisance, and diminishes the value of Plaintiff’s [sic] property. [¶] . . . Such actions were deliberate and willful, substantial and unreasonable and malicious.” (Indeed, many of these words and phrases are repeated again in the same cause of action.)
The Libows’ prayer for relief asks for a permanent injunction prohibiting all of the alleged actions of the Bronks, for a declaratory judgment and a quiet title decree that they have a prescriptive easement over the driveway, and then “Special and Compensatory Damages” against the Bronks “for nuisance, intentional infliction of emotional distress, loss of use, and diminution of value of Plaintiffs’ property” plus, additionally, “punitive damages against Defendant Bronks.”
These stark and reiterated accusations of deliberate, intentional, hostile, and malicious actions by the Bronks are simply not consistent with the sorts of alleged “occurrences” that the Newport policy insures them against. That conclusion is made abundantly clear from numerous cases discussing the difference between what is covered by the occurrence/accident terminology and intentional torts. Probably the most succinct of those statements was in Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537, where the Third District cited numerous prior appellate authorities in support of this statement: “An intentional act is not an ‘accident’ within the plain meaning of the word.” (See also, quoting this holding, Hurley Construction Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 539 (Hurley).) And in Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 750-751, Justice Chin wrote for a unanimous panel of Division Three of this District: “When ‘occurrence’ is defined as an ‘accident’ we [have previously] concluded that injury caused by expected or intended actions is not covered” and “where damage is the direct and immediate result of an intended or expected event, there is no accident.”
Essentially this same holding has been repeated in a variety of contexts in numerous other cases. We will note just four. In Stein-Brief Group, Inc. v. Home Indemnity Co. (1998) 65 Cal.App.4th 364, 371-372, the court affirmed a nonsuit granted by the trial court to the insurers of a residential housing developer who had been sued by two home buyers, both of whom alleged various breaches of agreements to sell lots or homes in two southern Orange County development projects. The developer had commercial general liability policies with the defendant insurers and argued that those policies’ definitions of property damage covered the “alleged loss of use” of the lots at issue in the underlying actions. The appellate court disagreed, stating: “the property damage coverage is subject to the same analysis as bodily injury. Both must flow from a covered occurrence. ‘Occurrence’ is defined as an accident or event resulting in bodily injury or property damage neither expected nor intended from the standpoint of the insured. This definition ‘focuses coverage on unexpected or accidental injuries that are fortuitous and not planned or intended. This concept of fortuity is basic to insurance law.’ [Citing Waller, supra, 11 Cal.4th at pp. 16-17.] As discussed above, nonaccidental acts arising out of a breach of contract do not constitute an ‘occurrence’ within the meaning of a CGL policy.”
In Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583 (Quan), the appellate court affirmed the dismissal (after the sustaining of a demurrer without leave to amend) of an action brought by insured property owners against their insurer after the latter refused to defend the insureds in a civil action alleging sexual misconduct by one of them. In affirming that dismissal, the appellate court wrote: “An intentional act is not an accident [citation] even if it causes unintended harm [citation]. An accident can flow from an intentional act only if ‘some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.’ [Citation.] In this case, there is no theory available on the facts expressed in the complaint or made known to the insurer from other sources under which the insured can be liable for physical injuries caused by ‘accidentally’ touching, kissing, embracing or having sex with the claimant, nor is there any additional ‘happening’ to combine with these necessarily deliberate acts so as to produce an ‘accident’ giving rise to bodily injury. There is thus no potential liability for ‘bodily injury’ caused by an ‘occurrence’ and no duty to defend.” (Id. at pp. 600-601, fn. omitted.)
Similarly, in Briones, supra, 81 Cal.App.4th 796, the appellate court affirmed the trial court’s grant of summary judgment against the insured, a mobile homeowner who had been sued for sexual molestation by a 15-year old student at a school where that insured was an instructor and, also, the student’s parents. The court of appeal agreed with the trial court that the insured had no claim for coverage or even defense of that action against his insurer: “We also agree with respondent and the trial court that there was no ‘occurrence’ within the meaning of the policy. An ‘occurrence’ is generally defined in the insurance industry as an accident resulting in bodily injury or property damage. [Citation.] Although the term is not defined in the homeowners policy here, intentional actions are generally not occurrences, because they are not accidents. [Citations.] Mr. Briones cites no contrary authority and we agree with the trial court that there was no accident or occurrence within the meaning of the policy and Insurance Code section 533. [Citations.] Thus, there was no potential for coverage and Northland’s summary judgment motion was properly granted.” (Briones, supra, at p. 811.)
Most recently, in Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, our colleagues in Division Four of this court unanimously affirmed a summary judgment entered by the Alameda County Superior Court against insured landlords who had been sued for the alleged wrongful eviction of Berkeley tenants and then been denied defense of that claim by their homeowners insurer. In affirming the summary judgment, Justice Sepulveda of Division Four wrote: “We fail to see any meaningful basis to reach a result here different from those in the wrongful termination cases. In both situations the insured’s conduct, whether lawful or not, inflicts an obvious harm to an important interest—the claimant’s interest in a leasehold, a place of shelter, a home, or in an employment contract, a job, a livelihood. The insured may believe that he or she is lawfully entitled to inflict such harm, but at least in the present setting such a belief seems beside the point. The harm is obvious, it is substantially certain to occur, and in the eyes of the law, it is intentional. [¶] Nor is it an ‘accident’ in common speech when an employer intentionally fires a worker, or a landlord evicts a tenant, whether or not the actor believes himself entitled to do so. To be sure, we can imagine an arguably ‘accidental’ firing where, e.g., the employer intends to discharge John Doe but, through miscommunication, fires Don Joe instead. Similarly a landlord’s agent might ‘accidentally’ serve a notice to quit on the wrong tenant. Those facts are not before us, of course, and we express no opinion as to whether they would be covered by the policy language at issue. We mention them only to illustrate a sense in which the common meaning of ‘accident’ might apply, as it does not here, to the formal termination of a legal relationship. [¶] We know of no case from this or any other jurisdiction where a harm knowingly and purposefully inflicted was held ‘accidental’ merely because the person inflicting it erroneously believed himself entitled to do so. We decline plaintiffs’ implicit invitation to expand the scope of liability for an ‘occurrence’ to such an uncertain but presumably dramatic extent. The only question before CCIC was whether plaintiffs intentionally caused the termination of the Chins’ tenancy. Since there was no dispute on that issue, there was no triable issue of fact as to coverage.” (Id. at pp. 9-10.)
Among the numerous other cases holding to the same effect are: Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 804-806; Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1609-1610; Dyer v. Northbrook Property & Casualty Ins. Co. (1989) 210 Cal.App.3d 1540, 1547; Commercial Union Ins. Co. v. Superior Court (1987) 196 Cal.App.3d 1205, 1209.
In rebuttal to these authorities (and many others like them) cited in Newport’s brief to us, the Bronks make two principal arguments. First of all, they contend that, based on their version of the events, there were “potentially” claims by the Libows that fell within the terms of the policy because the alleged actions “may have been careless or negligent rather than intentional.” But in suggesting this, the Bronks both make some outlandish arguments and ignore the controlling law.
Among the far-fetched arguments the Bronks make are that “the Bronks believed that they had a right to do as they wished on their own property, which rendered their actions non-intentional” and “[t]he Bronks were simply going about their daily lives; the Libows took issue and filed suit.” The mere quotation of these arguments effectively demolishes them.
Perhaps more importantly, the Bronks ignore settled law regarding the “potential” for coverage in a coverage action. That law is set forth toward the end of the excerpt from Waller (a case never cited by the Bronks) which we quoted at the beginning of this section of our opinion. But it has been summarized even more succinctly and recently in Baroco West, Inc. v. Scottsdale Ins. Co. (2003) 110 Cal.App.4th 96: “After receiving a tender of defense, the insurer satisfies its duty to investigate by considering the complaint and the terms of the policy. Although extrinsic facts may also give rise to a duty to defend, such facts must be known at the time of tender and must reveal a potential for liability.” (Id. at p. 103; see also, Low v. Golden Eagle Ins. Co. (2002) 99 Cal.App.4th 109, 113; Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114; Hurley, supra, 10 Cal.App.4th at p. 538.)
Finally, in both their briefs, appellants cite Borg v. Transamerica Ins. Co. (1996) 47 Cal.App.4th 448 (Borg) in support of their position that the Libows’ “Private Nuisance” cause of action triggered a duty to defend by Newport. They are wrong. In the first place, Borg did not involve a claim of “nuisance,” intentional or negligent; in fact, we can find no mention of that word anywhere in that opinion. Rather, it involved a claim by an adjoining lot owner that the defendant homeowner in the underlying action had built additions (a redwood deck, three planter boxes, and a concrete pad for a garage) that encroached upon the plaintiff-lot owner’s property. That plaintiff filed suit against the homeowner for both “Willful Trespass” and “Negligent Trespass.” According to the opinion by our colleagues in Division Three of this District, the latter––the second––cause of action “alleged that ‘[a]s a proximate result’ of Borg’s negligence in encroaching and trespassing on [the plaintiff’s] property, ‘plaintiff . . . has suffered damages from the loss of use of the property encroached on . . . .” (Id. at pp. 452-453.) Thus, one of the bases for the court overturning the lower court’s decision that the homeowner’s insurer had no duty to defend was the specific allegations of “negligent trespass” in the complaint by the neighboring lot owner. (Id. at pp. 456-457.)
Finally, the dispositive issue in Borg was not, as it was in the plethora of authority cited above, whether there was an “occurrence,” i.e., an “accident,” versus “intentional conduct” but, rather, whether the alleged damage suffered by the third-party claimant fell within the time period covered by the relevant homeowners insurance policy. (Borg, supra, 47 Cal.App.4th at pp. 458-463.)
For all these reasons, we affirm the lower court’s grant of summary judgment.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.