Filed 4/28/15 Certified for publication 5/20/15 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

SHELLY ALBERT,

Plaintiff and Appellant,

v.

MID-CENTURY INSURANCE 

COMPANY,

Defendant and Respondent.

 B257792

 (Los Angeles County

 Super. Ct. No. EC060422)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

William D. Stewart, Judge. Affirmed.

Law Offices of James T. Hudson and James T. Hudson for Plaintiff and 

Appellant.

Horvitz & Levy, Lisa Perrochet and Emily V. Cuatto for Defendant and 

Respondent.
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Plaintiff Shelly Albert appeals from the judgment in favor of defendant 

Mid-Century Insurance Company after the trial court granted defendant’s motion 

for summary judgment, and denied plaintiff’s cross-motion for summary 

adjudication. Plaintiff sued defendant for breach of the insurance policy and 

insurance bad faith after defendant denied her tender of the defense of a lawsuit 

brought by nonparty Henri Baccouche. Plaintiff contends there were triable issues 

of fact relating to the duty to defend that precluded summary judgment, reasoning 

she met her burden of establishing the potential for coverage, and that defendant 

did not demonstrate there was no possibility of coverage. Finding that 

Mr. Baccouche’s claims against plaintiff arise from nonaccidental conduct, outside 

the terms of the policy, we affirm the judgment below.

FACTUAL BACKGROUND

The undisputed facts are these, as established by the parties’ overlapping 

evidence: Plaintiff purchased a homeowners insurance policy from defendant in 

January 2008. The policy was in force on January 3, 2011, when plaintiff was 

sued by her neighbor, Mr. Baccouche, for damage plaintiff caused to his property 

when plaintiff erected an encroaching fence, and pruned nine mature olive trees on

Mr. Baccouche’s property. Plaintiff tendered the claim to defendant to provide a 

defense, and defendant denied plaintiff’s claim. Plaintiff sued defendant, alleging 

causes of action for declaratory relief, breach of contract, and breach of the 

implied covenant of good faith and fair dealing. Defendant filed a motion for 

summary judgment. Plaintiff filed a cross-motion for summary adjudication of the 

duty to defend the Baccouche action. 

1. The Insurance Policy

The insuring clause of plaintiff’s policy stated: “We will pay those 

damages which an insured becomes legally obligated to pay because of: [¶] . . . 

[¶] property damage resulting from an occurrence. [¶] At our expense and with 

attorneys of our choice, we will defend an insured against any suit seeking 

damages covered under [this section]. . . . [¶] We do not have any duty to defend 
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or settle any suit involving actual, alleged, threatened or declared . . . property 

damage not covered under this liability insurance. This applies whether or not the 

suit is groundless, false or fraudulent.” (Boldface omitted.) The policy defines an 

“occurrence” as “an accident, including exposure to conditions, which occurs 

during the policy period, and which results in . . . property damage . . . during the 

policy period. Repeated or continuous exposure to the same general conditions is 

considered to be one occurrence.” (Boldface omitted.) 

The policy also set forth a number of exclusions, including one for 

“Intentional acts,” which the policy defined as “property damage . . . which is 

caused by, arises out of or is the result of an intentional act by or at the direction of 

the insured. By way of example this includes but is not limited to any intentional 

act or intentional failure to act by an insured, whether a criminal act or otherwise, 

where resulting injury or damage would be objectively expected to a high degree 

of likelihood, even if not subjectively intended or expected. This exclusion 

applies even if: [¶] . . . an insured mistakenly believes he or she has the right to 

engage in certain conduct; [¶] . . . [¶] . . . the injury or damage is different or 

greater or of a different quality than that intended or expected.” 

2. Mr. Baccouche’s Lawsuit

On January 3, 2011, Mr. Baccouche filed a verified complaint alleging 

causes of action for trespass to real property and trees, abatement of private 

nuisance, declaratory relief, and for quiet title. The complaint alleged that

Mr. Baccouche and plaintiff owned adjacent parcels of land which were subject to 

a reciprocal roadway easement providing both parcels (and another parcel not at 

issue here, belonging to another landowner) access to the main public road. 

Plaintiff erected a permanent fence over a portion of the roadway easement, which 

also intruded onto Mr. Baccouche’s parcel. The fence enclosed a 644 square foot 

portion of Mr. Baccouche’s land, which included a grove of nine mature olive 

trees. The trees had “full, substantial canopies that provided privacy, enhanced the 

value of [Mr. Baccouche’s] property and defined the space, and provided 
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environmental services as well. To [Mr. Baccouche’s] surprise, shock, disgust and 

anger, his trees had been severely damaged by [plaintiff] (presumably by her 

agents, servants, employees or independent contractors), whose actions in hacking, 

cutting and pruning the trees reduced them to a pitiable state.” The complaint 

further alleged that plaintiff “willfully and maliciously damaged nine mature olive 

trees on [Mr. Baccouche’s] property . . . by severely hacking cutting and pruning 

those trees so as to greatly reduce their canopies, foliage, limbs, etc., without 

permission . . . .” The “severe damage” to the trees “greatly diminished the 

aesthetic and monetary value of those trees . . . .” The complaint sought treble 

damages under Civil Code sections 733 and 3346. 

Mr. Baccouche later filed a first amended complaint, newly alleging a cause 

of action for negligent damage to his trees. The amended complaint included new 

allegations that plaintiff “negligently cut and damaged [Mr. Baccouche’s] olive 

trees by failing to ascertain that said trees were on [Mr. Baccouche’s] property and 

that such cutting was in breach of the standard of care prescribed by any law or 

regulation that might be applicable to the trimming of trees for fire protection 

purposes in that the scope of the cutting and damaging of said trees far exceeded 

any legal requirements. [¶] [Plaintiff] had a duty to refrain from cutting and 

damaging [Mr. Baccouche’s] olive trees and in so cutting said trees, not to exceed 

any legal requirements for fire protection purposes.” 

A second amended complaint, with substantially similar allegations, was 

filed on August 29, 2011. 

3. Defendant’s Investigation and Denial of Plaintiff’s Claim

In January 2011, after plaintiff was served with Mr. Baccouche’s

complaint, she forwarded a copy of the complaint to defendant. On January 26, 

2011, plaintiff provided a recorded statement concerning her claim to defendant. 

In the recorded statement, plaintiff asserted that the fence she erected was within 

her property line. Plaintiff did not believe any of her fencing encompassed 

Mr. Baccouche’s property. As to the trees at issue in Mr. Baccouche’s complaint, 
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plaintiff asserted that the trees were “boundary trees” and that the trunks of the 

trees essentially straddled the property line between Mr. Baccouche’s and 

plaintiff’s properties. Plaintiff told defendant that since she purchased her lot, she 

has been notified by the Los Angeles Fire Department to clear the area where the 

trees were located, as it was within 200 feet of her residence. She trimmed these 

same trees year after year, and Mr. Baccouche never told her not to, or that the 

trees belonged to him. Plaintiff believed in good faith that the trees were hers, and 

that she was required to trim them. 

On May 13, 2011, Field Claims Manager Kristin Ferren denied plaintiff’s 

claim, asserting that the allegations in both the initial and first amended complaint 

“do not meet the definition of occurrence resulting in bodily injury or property 

damage as defined by your policy.” Ms. Ferren based her determination on the 

allegations in the pleadings, plaintiff’s recorded statement, and the terms of the 

policy. Ms. Ferren also concluded that plaintiff’s claim was barred by the 

exemption for intentional acts in the policy. Notwithstanding defendant’s denial 

of coverage, Ms. Ferren encouraged plaintiff to forward to defendant any pertinent 

information that might affect its coverage determination. 

On September 15, 2011, plaintiff forwarded a copy of the second amended 

complaint to defendant, with an email that stated that the trees were on the 

boundary line between her property and Mr. Baccouche’s property, and that “I was 

noticed continually since purchasing the property in 2003 by the Fire Dept[.] to 

trim [the trees] annually per brush clearance requirements. Because these trees are 

in essence mutually owned by both of us, it constitutes property covered under my 

policy. Accordingly, [defendant] has an obligation under my policy of insurance 

to tender a defense on my behalf. [¶] [Mr. Baccouche’s] entire complaint is false 

[and] outrageous . . . the trespass claim is ridiculous . . . in those boundary trees 

were enclosed by me, prior to any survey being done, based on a good faith belief 

that property encompassing the trees was mine . . . no intentional tort will lie.” 
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The email also contended defendant’s decision to deny her claim was “clearly 

error.” 

On September 27, 2011, defendant’s lawyer advised plaintiff that defendant 

had not changed its position, and still maintained that it had no duty to defend or 

indemnify plaintiff, as there was “no potential” for coverage of the claims made 

against her under the policy, as plaintiff had admitted she purposefully erected the 

fence, and had intentionally cut Mr. Baccouche’s trees. Defendant reasoned that 

because the conduct giving rise to Mr. Baccouche’s claims was intentional, it was 

not an accident or occurrence within the meaning of plaintiff’s insurance policy. 

The letter advised plaintiff to notify defendant of any additional facts which might 

bear on its coverage determination. 

On June 21, 2012, plaintiff faxed a “demand for tender of defense” to 

defendant and defendant’s counsel. The letter asserted that defendant’s 

September 27, 2011 denial letter was “based on incorrect or incomplete 

information.” She asserted that the trees at issue in Mr. Baccouche’s lawsuit “are 

boundary line trees, half on my property and half on his adjoining land. [¶] 

Because these trees are half on my property, coverage of this claim should be 

picked up by [defendant].” The letter complained that defendant’s insurance 

adjuster “declined to request . . . documentation supporting the fact that the 

ownership of trees in dispute are in fact HALF ON MY PROPERTY. Each of 

these trees were mapped and identified in a supplemental survey prepared by 

Licensed Surveyor Robert Hennon.” Plaintiff asserted that the survey made clear 

that the trees “straddle[d]” the property line between the two parcels of land, and, 

in any event, that the trees were not damaged by the trimming. Plaintiff urged that 

any supporting documents would be forwarded to defendant “upon request.” 

On July 26, 2012, defendant’s counsel informed plaintiff that defendant’s 

position on coverage remained unchanged, and that its coverage determination had 

considered the possibility that the trees were solely owned by plaintiff, were solely 

owned by Mr. Baccouche, or were jointly owned, and that the ownership of the 
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trees was irrelevant to the coverage determination because the damage occurred

from nonaccidental conduct. 

In a July 29, 2012 response to defendant’s July 26 letter, plaintiff took issue 

with some minor factual assertions in the letter, but did not otherwise claim that 

the damage to the trees had arisen from any sort of accident within the meaning of 

the policy. 

In an August 15, 2012 letter to plaintiff, defendant’s counsel pointed out 

that plaintiff had not provided any facts addressing defendant’s position that the 

incident was not an “accident” or “occurrence” within the meaning of the policy. 

Plaintiff retained counsel. On November 19, 2012, plaintiff’s counsel 

wrote to defendant’s counsel, forwarding a copy of an arborist report 

commissioned by Mr. Baccouche, in which the arborist opined that the trees had 

been significantly pruned, with between 8 percent and 74 percent of the canopy 

being removed. Counsel’s letter represented that if plaintiff was called to testify, 

she would testify that she hired an arborist to comply with Los Angeles Fire 

Department requirements, and that if the trees were excessively pruned, it was a 

result of her negligent supervision of the contractor she hired to do the pruning. 

On December 17, 2012, defendant responded that plaintiff had never 

claimed or produced any evidence demonstrating that the tree trimmers exceeded 

the scope of her directions. Therefore, defendant’s coverage determination was 

unchanged. 

The parties continued to exchange correspondence disputing whether the 

“negligent” cutting of the trees by plaintiff’s contractor would bring 

Mr. Baccouche’s claims within the ambit of the policy. However, no evidence 

concerning the trimming of the trees was ever presented. 

Plaintiff’s motion for summary adjudication additionally included a 

declaration by plaintiff, in which she authenticated the documents in support of 

her motion (many of which are summarized above). Plaintiff’s motion 

additionally included a 2009 letter from the Los Angeles Fire Department, stating 
8

that her property had been inspected on May 12, 2009, and was not in compliance 

with the City’s brush clearance ordinance. Specifically, the notice stated that all 

native brush and weeds within 200 feet of any residence must be cleared, and that 

trees taller than 18 feet should be trimmed so that no foliage was within six feet of 

the ground; smaller trees should have the lower one-third of their branches 

removed. A later notice showed plaintiff’s property had again been inspected, and

was found to be in compliance with the City’s brush clearance ordinance. 

Plaintiff’s declaration was silent on her hiring and supervision of independent 

contractors to trim Mr. Baccouche’s trees; instead, the declaration simply 

authenticated her recorded statement to defendant. 

The trial court granted defendant’s motion, and denied plaintiff’s motion, 

concluding that plaintiff had failed to demonstrate a potential for coverage, as the 

conduct at issue in Mr. Baccouche’s lawsuit was nonaccidental, intentional 

conduct. The trial court also concluded that to the extent Mr. Baccouche’s 

complaint alleged “negligent” conduct by plaintiff, there was no evidence 

whatsoever that the trees were injured in some accident, “e.g. by inadvertently 

striking a tree with a motor vehicle.” The trial court also concluded that 

Mr. Baccouche’s pleadings did not support plaintiff’s “negligent supervision”

theory. Plaintiff timely appealed the trial court’s judgment of dismissal. 

DISCUSSION

Defendant contends it had no duty to defend plaintiff in Mr. Baccouche’s 

lawsuit, reasoning that the claims all arose from plaintiff’s nonaccidental conduct. 

Plaintiff contends there was a triable issue of fact regarding whether her conduct 

was accidental within the meaning of the policy, thereby precluding summary 

judgment.1 We agree with defendant.

 

1 Plaintiff also contends that the trial court misapplied the burdens of proof in 

ruling on the motions, and did not follow relevant authority. Because our review 

is de novo, we need not decide those issues. 
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“[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 

(Aguilar).) “Once the [movant] has met that burden, the burden shifts to the [other 

party] to show that a triable issue of one or more material facts exists as to that 

cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at 

p. 850.) Where summary judgment has been granted, we review the trial court’s 

ruling de novo. (Aguilar, supra, at p. 860.) We consider all the evidence 

presented by the parties in connection with the motion (except that which was 

properly excluded) and all the uncontradicted inferences that the evidence 

reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We 

affirm summary judgment where the moving party demonstrates that no triable 

issue of material fact exists and that it is entitled to judgment as a matter of law. 

(§ 437c, subds. (c), (f).) Our review of the interpretation of an insurance contract 

on undisputed facts is also de novo. (State Farm General Ins. Co. v. Frake (2011) 

197 Cal.App.4th 568, 577 (Frake).)

An insurer owes its insured a broad duty to defend against claims creating a 

potential for indemnity. (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 

583, 590.) The duty to defend is broader than the duty to indemnify, and may 

exist even if there is doubt about coverage. (Id. at p. 591; see also Frake, supra, 

197 Cal.App.4th at p. 577.) When determining whether a duty to defend exists, 

the court looks to all of the facts available to the insurer at the time the insured 

tenders its claim for a defense. (Vann v. Travelers Companies (1995) 

39 Cal.App.4th 1610, 1614-1615.) Initially, the court compares the allegations of 

the complaint with the terms of the policy. (Frake, supra, at p. 578.) The proper 

focus is on the facts alleged in the complaint, rather than the alleged theories for 

recovery. Nevertheless, the insured “ ‘ “may not speculate about unpled third 

party claims to manufacture coverage,” ’ and the insurer has no duty to defend 

where the potential for liability is ‘ “tenuous and farfetched.” ’ The ultimate 
10

question is whether the facts alleged ‘fairly apprise’ the insurer that the suit is 

upon a covered claim.” (Michaelian v. State Comp. Ins. Fund (1996) 50 

Cal.App.4th 1093, 1106, citations omitted.) Facts extrinsic to the complaint may 

also be examined and may either establish or preclude the duty to defend. (Waller 

v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19.) Any doubt as to whether the 

facts give rise to a duty to defend is resolved in favor of the insured. (Vann, at 

pp. 1614-1615.) 

On summary judgment, “[t]o prevail [on the duty to defend issue], the 

insured must prove the existence of a potential for coverage, while the insurer 

must establish the absence of any such potential. In other words, the insured need 

only show that the underlying claim may fall within policy coverage; the insurer 

must prove it cannot. Facts merely tending to show that the claim is not covered, 

or may not be covered, but are insufficient to eliminate the possibility that 

resultant damages (or the nature of the action) will fall within the scope of 

coverage, therefore add no weight to the scales.” (Montrose Chemical Corp. v. 

Superior Court (1993) 6 Cal.4th 287, 300.) “[W]hen an insurer seeks summary 

judgment on the ground the claim is excluded, the burden is on the insurer to 

prove that the claim falls within an exclusion.” (Brodkin v. State Farm Fire & 

Casualty Co. (1989) 217 Cal.App.3d 210, 216.) In contrast, an insured must prove 

its claim falls within the policy’s coverage, even when the insurer has moved for 

summary judgment. (Roberts v. Assurance Co. of America (2008) 163 

Cal.App.4th 1398, 1407.)

Here, the policy covers property damage resulting from an occurrence, and 

the policy defines an occurrence as an accident. “Under California law, the word 

‘accident’ in the coverage clause of a liability policy refers to the conduct of the 

insured for which liability is sought to be imposed on the insured.” (Delgado v. 

Interinsurance Exchange of Automobile Club of Southern California (2009) 

47 Cal.4th 302, 311 (Delgado).) “An intentional act is not an ‘accident’ within the 

plain meaning of the word.” (Royal Globe Ins. Co. v. Whitaker (1986) 
11

181 Cal.App.3d 532, 537, fn. omitted.) “In the context of liability insurance, an 

accident is ‘ “an unexpected, unforeseen, or undesigned happening or consequence 

from either a known or an unknown cause.” ’ [Citation.]” (Delgado, at p. 308.)

The term “accident” refers to the nature of the insured’s conduct, and not to 

its unintended consequences. (Frake, supra, 197 Cal.App.4th at p. 579.) An 

accident “is never present when the insured performs a deliberate act unless some 

additional, unexpected, independent, and unforeseen happening occurs that 

produces the damage.” (Merced Mutual Ins. Co. v. Mendez (1989) 213 

Cal.App.3d 41, 50 (Merced).) When an insured intends the acts resulting in the 

injury or damage, it is not an accident “merely because the insured did not intend 

to cause injury. The insured’s subjective intent is irrelevant.” (Fire Ins. Exchange 

v. Superior Court (Bourguignon) (2010) 181 Cal.App.4th 388, 392, citation

omitted; see also Merced, at p. 48.)

Nevertheless, coverage is not always precluded when the insured’s 

intentional acts result in injury or damage. (Frake, supra, 197 Cal.App.4th at 

p. 580.) An accident may exist “when any aspect in the causal series of events 

leading to the injury or damage was unintended by the insured and a matter of 

fortuity.” (Merced, supra, 213 Cal.App.3d at p. 50.) For example, “[w]hen a 

driver intentionally speeds and, as a result, negligently hits another car, the 

speeding would be an intentional act. However, the act directly responsible for the 

injury -- hitting the other car -- was not intended by the driver and was fortuitous. 

Accordingly, the occurrence resulting in injury would be deemed an accident. On 

the other hand, where the driver was speeding and deliberately hit the other car, 

the act directly responsible for the injury -- hitting the other car -- would be 

intentional and any resulting injury would be directly caused by the driver’s 

intentional act.” (Ibid.)

Here, plaintiff posits that although she deliberately hired a contractor to 

trim the trees, the excessive cutting was not an intended consequence, and should 

be deemed an accident. Specifically, she maintains that the excessive cutting 
12

could have resulted from “miscalculation by the independent contractors, or it 

could have been as a result of a mishap with a motor vehicle . . . or truck . . . used 

in the tree trimming process, or by falling ladders, malfunctioning chainsaws or 

any number of other instrumentalities. All of these were possible ‘accidents’ 

causing the alleged excessive cutting.” Plaintiff also posits that the allegations of 

the second amended complaint support a claim that she negligently hired or 

supervised the tree trimmers. 

As discussed, ante, it is completely irrelevant that plaintiff did not intend to 

damage the trees, because she intended for them to be pruned. (Fire Ins. 

Exchange v. Superior Court, supra, 181 Cal.App.4th at p. 392; see also Merced,

supra, 213 Cal.App.3d at p. 48.) Moreover, it is undisputed that the contractor 

intended to cut the trees, and absolutely no facts exist, in the complaint or 

otherwise, indicating that some unforeseen accident (such as a slip of the 

chainsaw) caused the damage to the trees. In fact, it was always plaintiff’s 

position that the trees had not been damaged or pruned excessively (and therefore 

were not subject to an accident), and that they had been cut in accordance to the 

City’s brush clearance ordinance. “An insured may not trigger the duty to defend 

by speculating about extraneous ‘facts’ regarding potential liability or ways in 

which the third party claimant might amend its complaint at some future date.” 

(Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.)

Also nonexistent are any facts supporting plaintiff’s theory that her 

negligent supervision of the contractors brings the complaint within the terms of 

the policy. Negligent supervision requires: an employer supervising an employee; 

who is incompetent or unfit; the employer had reason to believe undue risk of 

harm would exist because of the employment; and the harm occurs. (Federico v. 

Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.) There are simply no 

facts, in the complaint or otherwise, supporting the elements of this claim. 

Plaintiff’s reliance on Firco, Inc. v. Fireman’s Fund Ins. Co. (1959) 173 

Cal.App.2d 524 is misplaced. In Firco, the appellate court concluded that the 
13

insurer had a duty to defend an action for trespass to trees, because, even though 

the policy exempted from coverage intentional acts, and the complaint alleged the 

trespass was malicious and intentional, trespass to trees can be committed 

involuntarily under Civil Code section 3346, and therefore, there was a possibility

of coverage under the allegations of the complaint. (Firco, at p. 529.) However, 

in Firco, there was no extrinsic evidence concerning how the damage to the trees 

was caused, as there is in this case. (Ibid.) 

Under any view of the underlying events, the trimming of the trees was no 

accident. Plaintiff failed to carry her burden to show any of Mr. Baccouche’s 

claims may fall within the scope of the policy. (Montrose Chemical Corp. v. 

Superior Court, supra, 6 Cal.4th at p. 300.) Accordingly, the trial court did not err 

in granting defendant’s motion for summary judgment.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.
Filed 5/20/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

SHELLY ALBERT,

Plaintiff and Appellant,

v.

MID-CENTURY INSURANCE 

COMPANY,

Defendant and Respondent.

 B257792

 (Los Angeles County

 Super. Ct. No. EC060422)

ORDER CERTIFYING OPINION FOR 

PUBLICATION

[No change in judgment]

THE COURT:

The opinion in the above-entitled matter filed on April 28, 2015, was not 

certified for publication in the Official Reports. For good cause, it now appears 

that the opinion should be published in the Official Reports and it is so ordered.

There is no change in the judgment. 

__________________________________________________________________

______

BIGELOW, P. J. FLIER, J. GRIMES, J.