Opinion
A150921
05-21-2018
HARTFORD CASUALTY INSURANCE COMPANY, Plaintiff and Respondent, v. VOGUE INTERNATIONAL, LLC, et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14750377)
Vogue International, LLC and Todd Christopher International, Inc. (each doing business as Vogue International; collectively Vogue) were sued in a consumer class action for falsely advertising cosmetic products as "organic." (Golloher v. Todd Christopher International, Inc. (N.D.Cal. Case No. 3:12-cv-06002-RS); hereafter Golloher Action.) Vogue sought defense coverage for the suit from its insurer, Hartford Casualty Insurance Company (Hartford). Hartford denied a duty to defend or indemnify, and initiated this declaratory relief action in the Alameda County Superior Court. Vogue concurrently pursued a declaratory relief coverage action against Hartford in Florida, resulting in a judgment in favor of Hartford. Vogue appeals from a subsequent grant of summary judgment in the instant case in favor of Hartford, arguing the trial court erred by applying res judicata principles to the earlier Florida judgment, and by concluding the underlying Golloher Action does not involve, under California law, an alleged disparagement of others' goods that would trigger Hartford's duty to defend. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hartford issued commercial general liability insurance policies to "Todd Christopher International DBA Vogue International" continuously between September 11, 2003, and March 1, 2009 (the Policies). In relevant part, the Policies provide: "[Hartford] will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies. [Hartford] will have the right and duty to defend the insured against any 'suit' seeking those damages. However, [Hartford] will have no duty to defend the insured against any 'suit' seeking damages for 'personal and advertising injury' to which this insurance does not apply." The Policies enumerate certain covered " 'personal and advertising injury' " offenses, including "[o]ral, written, or electronic publication of material that . . . disparages a person's or organization's goods, products or services," subject to the Policies' terms, conditions, and exclusions.
One such exclusion is for " '[p]ersonal and advertising injury' arising out of the failure of goods, products or services to conform with any statement of quality or performance made in your 'advertisement' " (Statement of Quality Exclusion). The Policies also exclude coverage for " '[p]ersonal and advertising injury' arising out of oral, written or electronic publication of material, if done by or at the direction of the insured with knowledge of its falsity" (Known Falsity Exclusion).
In October 2012, the Golloher Action was filed against Todd Christopher International, Inc., in Alameda County Superior Court, as a proposed consumer class action. The Golloher plaintiffs alleged Vogue's use of the terms "organic" and "Organix," in advertising its cosmetic products, falsely represented such products contained organic ingredients. In November 2012, Vogue tendered defense of the Golloher Action to Hartford. Hartford disclaimed a duty to defend the Golloher Action.
In August 2013, after the Golloher Action was removed to the U.S. District Court for the Northern District of California, a first amended complaint (the Golloher FAC) was filed. The Golloher FAC alleged that Vogue sold "cosmetic products" under the "Organix brand name" and "advertised, marketed, labeled, sold, and represented [the products] as organic, but [the products] are composed almost entirely from ingredients that are not organic." The Golloher FAC alleged that "Plaintiffs and all members of the Class have been subjected to the same wrongful conduct because they have purchased the Products which are labeled and sold as organic, but, in fact, are not. Plaintiffs and the other members of the Class have thus all overpaid for the Products." The Golloher plaintiffs sought preliminary and permanent injunctions, restitution, as well as "actual, punitive, treble, and/or statutory damages to Plaintiffs and each member of the Class." Vogue informed Hartford of the amendment and Hartford again disclaimed a duty to defend Vogue in connection with the Golloher FAC. In March 2014, the Golloher Action was resolved via settlement.
In May 2014, Todd Christopher International Inc. filed suit against Hartford in the U.S. District Court for the Central District of California seeking a declaration that Hartford had a duty to defend it in a different third-party action (Vogue I). The Central District entered judgment in Hartford's favor, concluding Vogue had not met its burden to show a potential for coverage. Vogue appealed the Vogue I decision to the Ninth Circuit. While the Vogue I appeal was pending, Vogue International, LLC, filed a December 2014 complaint for declaratory judgment against Hartford in Florida (Florida Coverage Action), alleging Hartford had a duty to defend it in the Golloher Action. One day later, Hartford filed the instant action against Vogue (both Vogue International, LLC, and Todd Christopher International Inc.) in Alameda County, seeking declaratory relief (by 16 separate causes of action) regarding Hartford's duties to defend and indemnify Vogue in the Golloher Action.
On Vogue's motion, the Alameda County matter was stayed pending resolution of the Florida Coverage Action after the trial court concluded both matters presented identical issues and comity favored a stay. In its motion to stay the proceedings, Vogue argued that a coverage determination in the Florida Coverage Action would be preclusive in this case and specifically conceded the issues and parties in the Florida Coverage Action were identical. Vogue argued, "all issues raised [herein] can and will be resolved by [the Florida Coverage Action]" and the Alameda County Superior Court "will be bound under collateral estoppel rules to honor Florida's judgment."
Meanwhile, Hartford and Vogue International, LLC, each moved for summary judgment in the Florida Coverage Action. Vogue International, LLC, sought a declaration in its favor on Hartford's duty to defend, relying primarily on two pleading allegations of the Golloher FAC. Specifically, Vogue International, LLC, directed the court's attention to the Golloher FAC's first cause of action, which alleged violations of consumer protection laws, including California's Consumers Legal Remedies Act (CLRA; Civ. Code, §§ 1750, 1770). The Golloher plaintiffs alleged: "Each of the [referenced consumer protection laws] prohibits unfair and deceptive acts or practices in the conduct of trade or commerce . . . includ[ing] that which directly and indirectly injures the Plaintiffs and Class Members, by: [¶] . . . [¶] Disparaging the goods, products, or business of another by false or misleading representation of fact[.] . . . [¶] . . . [¶] Defendants have engaged and continue to engage in conduct that is likely to deceive members . . . of the Class, and that did, in fact, deceive Plaintiffs . . . includ[ing] but not limited to, misrepresenting that the Products are organic when, in fact, the Products are not composed predominantly of organic ingredients." (Italics added.) Vogue International, LLC, also focused on the following allegation: "Use of the Organix label calls into question other similar representations of products as organic, thereby denigrating the reputation of and eroding confidence in organic personal care products that comply with [the California Organic Products Act (Health & Saf. Code, § 111910, subd. (a))] as well as other regulatory provisions nationally." (Italics added.)
The Golloher plaintiffs cited Civil Code section 1770, "including but not limited to [subdivisions] (a)(2), (3), (5), (7), (8), and (9)."
In June 2015, the Florida Circuit Court granted Hartford's motion for summary judgment, concluding Hartford had no duty to defend or indemnify Vogue International, LLC, with respect to the Golloher Action. The Florida Circuit Court relied on alternative grounds, first concluding that Vogue I was issue preclusive because it involved identical parties and addressed the same issues. The Florida Circuit Court also reached the merits, concluding Florida law applied to the coverage dispute, and explaining: "After a fair reading of the [Golloher FAC,] the Court cannot find an allegation of 'disparagement' sufficient to require coverage under the [Policies]. Clearly Vogue made no disparaging statements related to the Plaintiffs or competitors who brought the California suit. [¶] The substance of the California suit related to the quality and makeup of the subject product. The Court finds this would come within the [Statement of Quality Exclusion] set forth in the [Policies]. For the foregoing reasons, the Court does not find that [Hartford] is required to extend coverage to the Plaintiffs."
It is now undisputed "[this] portion of the Florida Judgment is no longer of any effect" because Vogue I has since been dismissed for lack of jurisdiction.
The Florida Circuit Court entered a declaratory judgment in Hartford's favor, stating, "Hartford owes no duty to defend or indemnify [Vogue International, LLC,] under the [Policies] . . . in connection with the [Golloher Action]." The Florida Court of Appeal affirmed that judgment in April 2016. The judgment in the Florida Coverage Action has now become final. (Fla. Rules App.Proc., rules 9.330(a), 9.120(b).)
Thereafter, the parties filed cross motions for summary judgment in the instant action. The Alameda County Superior Court denied Vogue's motion, but granted Hartford's motion for summary judgment. The court explained: "[T]he court agrees with Hartford that the Florida Judgment is entitled to full faith and credit in California. Vogue's arguments to the contrary are entirely dependent on a showing that it is unable to make, i.e., that the application of California coverage law rather than Florida coverage law would lead to a different result. . . . [¶] . . . [¶] As the parties both recognize, the coverage determination under California law is driven by [Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277 (Swift)], and while the Swift court acknowledges that 'disparagement' in the coverage context can be 'by implication,' Vogue has not presented any post-Swift cases in any jurisdiction where disparagement of third parties by implication was found to have triggered coverage in a consumer class action. . . . [¶] . . . Furthermore, even were the court to agree with Vogue that the disparagement of a third party can form the basis for coverage in a consumer class action by virtue of the CLRA, the result would be the same. Notwithstanding the conclusory allegations in the complaint in the Golloher Action . . . , the factual allegations do not clearly imply the inferiority of any other product, and therefore do not constitute disparagement (Swift, at [p.] 297). [¶] The court also agrees with Hartford that the record compels the conclusions (a) that the claims in the Golloher Action fall within the [Statement of Quality Exclusion] . . . ; (b) that because there is no coverage under the primary policies, the umbrella policies do not apply; and (c) that because there is no duty to defend, there cannot be a duty to indemnify (Certain Underwriters at Lloyd's of London [v. Superior Court (2001)] 24 Cal.4th [945,] 958). [¶] . . . [¶] In sum, California coverage law compels the same result as that in the Florida Judgment."
The trial court denied Vogue's motion for reconsideration and entered judgment in Hartford's favor. Vogue filed a timely notice of appeal.
II. DISCUSSION
Vogue contends (1) neither res judicata nor collateral estoppel bar relitigation of the Golloher Action coverage dispute, (2) the Golloher FAC alleges implicit disparagement, triggering Hartford's duty to defend under the Policies, and (3) the Statement of Quality Exclusion does not apply. We disagree on the first point and, accordingly, need not reach Vogue's additional arguments. A. Standard of Review
"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted; accord, Code Civ. Proc., § 437c, subd. (c).) A triable issue exists if "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, at p. 850, fn. omitted.)
Summary judgment is appropriately granted when the doctrine of collateral estoppel negates a fact essential to the plaintiff's case. (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1335.) On appeal, we consider application of collateral estoppel or res judicata de novo. (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 399; Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1415.) "[A] summary judgment, like any other, will be affirmed if legally correct, without regard for the particular reasons invoked by the trial court." (California State Electronics Assn. v. Zeos Internat. Ltd. (1996) 41 Cal.App.4th 1270, 1275.) B. Full Faith and Credit & Collateral Estoppel Doctrines
The dispositive issue in this case is whether Vogue is barred by the full faith and credit clause and res judicata from relitigating Hartford's duty to defend and indemnify in connection with the Golloher Action. Vogue contends it is not barred from relitigating the issue of implicit disparagement because it was not decided by the Florida Judgment. Hartford disagrees. Specifically, Hartford argues that Vogue, after arguing the Florida Judgment would be binding herein and that Florida law governs, cannot reverse course after obtaining an adverse judgment. Hartford contends "Vogue's tactics are barred by the [full faith and credit clause], res judicata, collateral estoppel, and judicial estoppel."
The United States Constitution's full faith and credit clause provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (U.S. Const., art. IV, § 1.) This provision is implemented by a provision of federal law, which provides in relevant part: "The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. [¶] Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." (28 U.S.C. § 1738, italics added.) In California, section 1913 of the Code of Civil Procedure codifies the same principle: "[T]he effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced in this state by an action or special proceeding."
"[T]he purpose of the [full faith and credit] clause was to replace the international law rule of comity with a constitutional duty of states to honor the laws and judgments of sister states. . . . [¶] Without the clause, unsuccessful litigants could have proceeded from state to state until they obtained a favorable judgment, capitalizing on state courts' freedom to ignore the judgments of sister states. But . . . the full faith and credit clause brought to the Union a useful means of ending litigation by making 'the local doctrines of res judicata . . . a part of national jurisprudence.' " (Adar v. Smith (5th Cir. 2011) 639 F.3d 146, 152-153.) "A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. For claim and issue preclusion (res judicata) purposes, in other words, the judgment of the rendering State gains nationwide force." (Baker v. General Motors Corp. (1998) 522 U.S. 222, 233, fn. omitted.)
Although Vogue concedes the Florida courts had jurisdiction and the full faith and credit doctrine applies, it argues claim preclusion and issue preclusion do not. Res judicata, or claim preclusion, bars relitigation " 'of the same cause of action in a second suit between the same parties or parties in privity with them.' " (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) Collateral estoppel, or issue preclusion, "prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. . . . [T]he prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.] . . . [¶] Issue preclusion differs from claim preclusion in two ways. First, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues. Second, unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy in the first suit." (Id. at p. 824.)
Vogue's initial argument is that we must apply Florida law to determine whether the Florida Judgment is preclusive. In support of its position, Vogue relies on federal authority establishing that, "[w]hen asked to give preclusive effect to a state court judgment, a [federal] court 'must apply the res judicata principles of the state whose decision is set up as a bar to future litigation.' " (Kmart Corp. v. Securitas Security Services USA (N.D.Ga. 2012) 2012 U.S.Dist. Lexis 191234, at p.* 25.) The same principle is recognized and applied by our high court. (Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 454; accord, Code Civ. Proc., § 1913.) Yet, we find application of Florida's res judicata principles makes no difference. Although Vogue alludes to "significant distinctions" between California and Florida law, it does not actually demonstrate any differences relevant to the dispositive issue before us. (See, e.g., North Shore Realty Corp. v. Gallaher (Fla.Dist.Ct.App. 1957) 99 So.2d 255, 257 [effect of declaratory judgment "is not to merge the cause of action in the judgment but to make res judicata only the matters actually declared by the judgment, thus precluding the parties to the litigation or their privies from relitigating those matters"].)
As discussed post, we need not concern ourselves with whether Florida has adopted the "primary right" or "operative fact" tests for determining when two cases involve the same cause of action for res judicata purposes. When neither the parties nor this court have located Florida authority addressing a particular the question, we assume Florida law "is not out of harmony with ours and . . . look to our law for a solution of the problem." (Gagnon Co., Inc. v. Nevada Desert Inn, supra, 45 Cal.2d at p. 454.)
In fact, the relevant res judicata principles appear to be precisely the same under both California and Florida law. A purely declaratory judgment, like the Florida Judgment, is not fully claim preclusive under principles of res judicata. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 898; North Shore Realty Corp. v. Gallaher, supra, 99 So.2d at p. 257.) A declaratory judgment is preclusive "as to the matters declared as well as any issues actually litigated and determined." (Aerojet-General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 403 (Aerojet-General); accord, Mycogen Corp., at p. 898; North Shore Realty Corp., at p. 257.) "[T]he different function of declaratory relief justifies the refusal to apply the merger doctrine: 'A plaintiff who wins a declaratory judgment may go on to seek further relief, even in an action on the same claim which prompted the action for a declaratory judgment. . . . Nonmerger is justified by arguments based on the purpose of declaratory relief. A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief, if it appears that a declaration might terminate the potential controversy. . . . .' [¶] But this does not mean that a declaratory judgment is not conclusive as to the matters that appear on the face of the judgment." (Aerojet-General, at p. 403, italics added.)
Collateral estoppel applies " 'only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.' " (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1272; accord, DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 824; Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC (11th Cir. 2012) 702 F.3d 1312, 1318 (Miller's Ale House); Department of Health & Rehabilitative Services v. B.J.M. (Fla. 1995) 656 So.2d 906, 910.)
Despite Vogue's admission, in connection with its motion to stay, that collateral estoppel requirements are satisfied, Vogue now asserts the identical issues requirement cannot be met because, in the Florida Coverage Action, the duty to defend issue was litigated and decided under Florida insurance coverage law, not California insurance coverage law. Vogue insists the latter should govern this suit and that "different facts are germane to coverage analysis in California, not applicable under Florida law." Vogue emphasizes that, "California law embraces inferences finding potential coverage for even 'remote facts' that reveal a potential for amendment of a claim." Under Florida law, in contrast, " 'inferences are insufficient to trigger coverage.' " (Auto-Owners Ins. Co. v. Elite Homes, Inc. (M.D.Fla. 2016) 160 F.Supp.3d 1307, 1312; Fun Spree Vacations v. Orion Ins. Co. (Fla.Dist.Ct.App. 1995) 659 So.2d 419, 421-422.) Vogue also directs our attention to Florida law establishing "[u]nsupported and conclusory 'buzz words' in the complaint are insufficient to trigger coverage." (Auto-Owners Ins. Co., at p. 1310.) Thus, Vogue attempts to frame this case as being about whether the issue of implicit disparagement under California insurance coverage law was litigated and decided in the Florida Coverage Action. Vogue contends it cannot be collaterally estopped from litigating an issue that was not actually litigated. We are unpersuaded.
Hartford argues Vogue is judicially estopped from taking the position on appeal that collateral estoppel does not apply when it took a contrary position below. Because we affirm the trial court's judgment on other grounds, we need not address this argument.
In the Florida Judgment, it was determined "Hartford owes no duty to defend or indemnify [Vogue International LLC] under the policies of liability insurance issued by Hartford to Todd Christopher International dba Vogue International in connection with the underlying [Golloher Action]." The instant action involves Hartford's obligations to defend or indemnify Vogue, under the Policies, in connection with the Golloher Action. Thus, it presents precisely the same "matter" declared in the Florida Coverage Action. (See Aerojet-General, supra, 97 Cal.App.4th at p. 406 [preclusive effect of declaratory judgment is not limited to "issues actually litigated and determined, but also gives conclusive effect to the matters stated in a declaratory judgment"].) "[U]sual claim preclusion principles do not apply to declaratory judgments. But neither do the cases hold that only principles of issue preclusion apply to declaratory judgments, at the expense of what is declared in the judgment." (Id. at p. 407.)
We need not engage in a prolonged debate regarding the limits of Swift, supra, 59 Cal.4th 277, or any other California insurance coverage authority, or whether application of California coverage law "would lead to a different result." Vogue is merely asserting the Florida Judgment was wrongly decided, which is irrelevant. (Fauntleroy v. Lum (1908) 210 U.S. 230, 237; Proctor v. Vishay Intertechnology, Inc., supra, 213 Cal.App.4th at p. 1270; Aerojet-General, supra, 97 Cal.App.4th at p. 398 ["invocation of a final judgment as res judicata in a subsequent action is not an invitation to the losing party to attack the judgment for nonjurisdictional error, ironically defrocking the judgment of the very finality upon which the res judicata doctrine depends"].) "[T]he law is well established that upon a claim that a foreign judgment is not entitled to full faith and credit, the permissible scope of inquiry is limited to a determination of whether the court of forum had fundamental jurisdiction in the case . . . . [¶] [T]he California law is clear that the differing public policy or laws of the enforcing state cannot contravene the full faith and credit clause of the Constitution. As has been repeatedly stated, California must, regardless of policy objections, recognize the judgment of another state as res judicata . . . ." (World Wide Imports, Inc. v. Bartel (1983) 145 Cal.App.3d 1006, 1010-1011.)
Vogue's current position—that California insurance coverage law is more forgiving—is merely a legal theory that could have been, but was not advanced in the prior litigation. "[A] party may not offer new reasons or theories for a position originally advanced and adversely adjudicated in a declaratory relief action, even though those new theories were not litigated." (Aerojet-General, supra, 97 Cal.App.4th at p. 407.) In fact, even if we assume for the sake of argument we should look beyond the matters declared in the Florida Judgment, it appears the choice of law question is itself an issue that was decided in the Florida Coverage Action and cannot be relitigated. Vogue International, LLC, was the party who initiated the Florida Coverage Action. It had every opportunity to argue California coverage law should apply. It did not, instead asserting that "Florida law applies to this coverage dispute." Ultimately, the Florida Circuit Court, as Vogue urged, applied Florida law in determining coverage for the Golloher Action. The Florida court's determination of that issue is also final. We are wholly unpersuaded by Vogue's suggestion the Florida Circuit Court's resolution of the choice of law issue is not final because Hartford did not seek review or rehearing. Hartford had no basis to seek review or rehearing because it was not aggrieved by the Florida Judgment.
Vogue's reliance on Miller's Ale House, supra, 702 F.3d 1312, does not persuade us to reach a different conclusion. That case involved a trademark dispute between two restaurant chains operating in Florida. (Id. at p. 1315.) The United States District Court for the Southern District of Florida granted summary judgment in the defendant's favor, on the ground the plaintiff's trademark infringement claim was precluded by a final judgment reached in the Fourth Circuit Court of Appeals. (Id. at pp. 1315, 1317.)
The Eleventh Circuit observed that, under federal issue preclusion principles, the doctrine applies "when (1) the issue at stake is identical to the one involved in the prior litigation; (2) the issue was actually litigated in the prior suit; (3) the determination of the issue in the prior litigation was a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding." (Miller's Ale House, supra, 702 F.3d at p. 1318.) The Miller's Ale House court recognized the plaintiff might be able to relitigate the issue of whether the term "ale house" was generic under federal trademark law because the Fourth Circuit considered the issue as of 1998, and the current case presented the issue as of 2009. (Id. at pp. 1318-1320.) The court reasoned: " '[C]hanges in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action raising the same issues.' [(Montana v. United States (1979) 440 U.S. 147, 159.)] A party 'need only point to one material differentiating fact that would alter the legal inquiry here and thereby overcome the preclusive effect.' " (Miller's Ale House, at p. 1319, italics added.) However, because the plaintiff's evidence "fail[ed] to indicate any change at all in the public perception of the term," it remained bound by the Fourth Circuit's decision on the issue. (Id. at p. 1321.)
The generic nature of an alleged trademark term, at issue in Miller's Ale House, is necessarily dependent on the time of reference. (Miller's Ale House, supra, 702 F.3d at p. 1320 [a term previously found to be generic can be " 'reclaimed from the public domain by a change in public usage' "].) Here, however, Vogue does not point to a single factual distinction that would allow it to relitigate Hartford's duty to defend and indemnify Vogue in the Golloher Action. The instant suit does not involve different policies or a different third-party action, facts which might be analogous to the "new facts" at issue in Miller's Ale House. Rather, Vogue insists distinct factual circumstances are presented in the instant suit because "there was no actual litigation leading to a determination vis-à-vis [Civil Code section 1770, subdivision (a)(8)] in Florida."
We need not look beyond the matters declared in the Florida Judgment. However, to the extent Vogue argues that implicit disparagement under the CLRA is an issue not "actually litigated" in the Florida Coverage Action, it is mistaken. " 'For purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding.' " (Proctor v. Vishay Intertechnology, Inc., supra, 213 Cal.App.4th at p. 1273, fn. 4; accord, Aronowitz v. Home Diagnostics, Inc. (Fla.Dist.Ct.App. 2015) 174 So.3d 1062, 1066.) Just as it does here, Vogue International, LLC, argued in the Florida Coverage Action that the Golloher CLRA claim sought damages arising out of implicit disparagement, which triggered Hartford's duty to defend under the Policies. Vogue International LLC, directed the Florida courts' attention to the CLRA claim repeatedly in its summary judgment briefing and in its opening brief on appeal. There is no support for Vogue's position the Florida courts did not consider the argument. (See Evid. Code, § 664; Rutherford v. State of California (1987) 188 Cal.App.3d 1267, 1285.)
We conclude the Florida Judgment is conclusive as to the matters declared on the face of the judgment—that "Hartford owes no duty to defend or indemnify [Vogue] under the policies of liability insurance issued by Hartford to Todd Christopher International dba Vogue International in connection with the underlying [Golloher Action]." The trial court did not err in granting Hartford's motion for summary judgment.
Because we affirm the trial court's judgment on res judicata grounds, we need not reach Vogue's remaining arguments.
III. DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.