Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

GREAT AMERICAN INSURANCE 

COMPANY,

Plaintiff,

v.

QUINTANA HOMEOWNERS 

ASSOCIATION, et al.,

Defendants.

Case No. 5:17-cv-00693-EJD 

ORDER GRANTING IN PART AND

DENYING IN PART PLAINTIFF’S 

MOTION FOR SUMMARY 

JUDGMENT; DENYING

DEFENDANT’S RULE 56(F) MOTION

Re: Dkt. No. 52

I. INTRODUCTION

Plaintiff Great American Insurance Company (“GAIC”) initiated this declaratory relief 

action seeking a judicial determination that it does not owe Defendants Quintana Homeowners 

Association (“Quintana HOA”) and James Gregg (“Gregg”) a duty to defend or indemnify in the 

underlying suit entitled GIBCO Partners, LLC v. Quintana Homeowners Association, et al., that 

was pending in the Monterey County Superior Court, but has settled. Presently before the Court is

GAIC’s motion for summary judgment, or in the alternative, partial summary judgment. The 

Quintana HOA opposes the motion and seeks summary judgment in its favor pursuant to Rule 

56(f), Fed.R.Civ.P. Gregg does not oppose GAIC’s motion. The motions were heard on February 

22, 2018. For the reasons set forth below, GAIC’s motion is granted as to Gregg and denied as to 

the Quintana HOA, and Quintana HOA’s motion is denied.
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

II. BACKGROUND

A. Underlying Action

The plaintiff in the underlying action, GIBCO Partners, LLC (“GIBCO Partners”), is the 

purchaser of “Lot 10,” a 91.5 acre plot of land located within a 2,070 acre development in Carmel 

Valley known as Quintana. Prior to purchasing the property, GIBCO Partners’ manager, Jonathan 

Gibson (“Gibson”) reviewed Quintana’s Covenants, Conditions and Restrictions (“CC&Rs”), the 

Design Guidelines of Quintana, and the maps of the Quintana lots contained in each of these 

documents. Based upon the information contained therein, Gibson determined that the “building 

envelopes” (the area of each lot in Quintana in which all residential improvements must be built) 

could only be changed in one of three specified ways: (1) the Architectural Review Board 

(“ARB”) could make the changes without formally amending the Design Guidelines if certain 

findings were made; (2) the ARB could make changes if it received the vote or written consent of 

no less than seventy-five percent (75%) of the Quintana HOA; or (3) the developer, Twelfth Tee, 

could make changes. Golf Properties, LLC (“Golf Properties”) is the managing member of 

Twelfth Tee.

On January 30, 2008, prior to purchasing Lot 10, Gibson had a telephone conversation 

with Gregg, who was identified in the complaint as a developer of Quintana with an ownership 

interest in Twelfth Tee, a member of the Quintana HOA Board from 2003-2011, and a member of 

the ARB from approximately 2003-2013. Based on this conversation, Gibson believed that Gregg

was the key person to contact at Quintana to obtain information and guidance about whether he 

should purchase Lot 10. GIBCO Partners allegedly relied upon the information Gregg provided, 

as well as the representations in the CC&Rs, the Design Guidelines and maps, in concluding that 

Lot 10 would provide Gibson and his family the privacy they desired, when it decided to purchase 

Lot 10 for $2.75 million on February 28, 2008.

GIBCO Partners alleged that the information Gregg provided was false and misleading.

Further, GIBCO Partners alleged that throughout 2009, 2010 and 2011, the Quintana HOA and 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

ARB allowed multiple violations of the CC&Rs to exist on eight of the thirteen lots in the 

Quintana development, including among other things, building envelope violations. GIBCO 

Partners alleged that it notified the ARB and the Quintana HOA of the violations and was 

promised that the CC&Rs would be enforced. The Quintana HOA and ARB, however, allegedly 

failed to fulfill their promise. Instead, in approximately June of 2012, the Quintana HOA

president asked the lot owners to approve a series of amendments to the Design Guidelines which 

would eliminate several of the violations, and the ARB promised to approve a few of the 

violations for some of the lot owners if those lot owners voted to approve the Design Guideline 

revisions. Ultimately, the amendments to eliminate several of the longstanding violations received 

enough votes to pass, and the ARB approved most of the remaining violations.

GIBCO Partners filed suit against the Quintana HOA and Gregg in September of 2011 in 

the Monterey County Superior Court, asserting claims relating to GIBCO Partners’ purchase of 

Lot 10. In June of 2015, the Superior Court ruled that GIBCO Partners may not assert a claim for 

damages against the Quintana HOA. MSS 9-11. Gregg’s deposition in the underlying action was 

taken in September of 2016. His testimony confirmed that he was one of the initial members of 

the Board of Directors for the Quintana HOA, but was no longer serving in that capacity in 2008 

when he had the telephone conversation with Gibson.

In April of 2017, GIBCO Partners obtained leave to file the operative complaint, the 

Amended Revised Sixth Amended Complaint, which added, in pertinent part, allegations that 

Gregg was a “volunteer” for the Quintana HOA. The operative complaint included the following 

claims pertinent to the instant insurance coverage action: breach of contract against the Quintana

HOA for failure to enforce the CC&Rs and Design Guidelines, for which GIBCO Partners seeks 

injunctive relief and an award of attorney’s fees; fraud and negligent misrepresentation against 

Gregg, acting in the capacity of “a volunteer on behalf of the HOA,” for which GIBCO Partners

seeks damages, including punitive damages, as well as attorney fees; violation of California 

Corporations Code §§8320, 8321, 8333 against the Quintana HOA, for which GIBCO Partners
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

seeks injunctive relief and attorney fees; violation of the Davis-Stirling Act, California Civil Code 

§§1363, 1363.05, 1365 and 1363.840, for which GIBCO Partners seeks injunctive relief and 

attorney fees; and declaratory relief against the Quintana HOA with respect to an alleged building 

envelope violation on Lot 11, and attorney fees. 

Quintana HOA and Gregg (collectively “Insureds”) received a defense in the underlying 

action from Quintana HOA’s primary insurer, Travelers Casualty and Surety Company of 

America (“Travelers”) under a primary liability insurance policy issued to Quintana HOA 

(“Travelers Policy”). In February of 2017, Quintana HOA’s excess carrier, GAIC, issued letters 

denying any obligation to defend and indemnify Quintana HOA and Gregg in the event the 

Travelers policy was exhausted.

GIBCO Partners offered to settle with the Quintana HOA for $1,200,000.1 Travelers 

agreed to pay what remained of its $2,000,000 eroding policy to settle the case, which was 

estimated at the time to be approximately $450,000. In August of 2017, the Quintana HOA’s 

counsel notified GAIC of the settlement offer and Traveler’s agreement to contribute to the 

settlement. The Quintana HOA requested that GAIC pay $750,000 of the proposed settlement.

When GAIC refused to contribute toward the settlement and denied any duty to defend, the 

Quintana HOA felt it had no choice but to settle the action out of economic necessity. Under the 

terms of the settlement, Travelers paid what remained of its policy ($415,000) and the Quintana 

HOA paid the remaining $785,000. The settlement included a release of all damages and attorney 

fees and costs. As to Gregg, the action settled for a mutual release of all claims and no monetary 

payment. After the agreement to settle was confirmed, the Quintana HOA’s counsel again 

requested that GAIC contribute to the settlement. GAIC never responded.

B. The Coverage Action

Shortly after declining coverage and prior to the settlement of the underlying case, GAIC 

 

1 GIBCO Partners had incurred in excess of $1,200,000 in attorney fees and costs in prosecuting 

the underlying action.
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

initiated the instant action in February of 2017 seeking a judicial declaration that it has no 

obligation under the umbrella liability policy it issued to the Quintana HOA (“Umbrella Policy”) 

to defend and indemnify the Quintana HOA and Gregg upon exhaustion of the Travelers Policy. 

The GAIC Umbrella Policy provides “Claims Made Coverage” for the coverage period of 

September 21, 2011 to September 21, 2012, and contains a limit of $5 million for each occurrence 

and a $5 million general aggregate limit. The GAIC Umbrella Policy provides “follow form 

umbrella coverage” over the Travelers Policy, and accordingly the coverage in the Travelers 

Policy applies to GAIC’s obligations under its Umbrella Policy.

Before the underlying case settled, the Quintana HOA answered and counterclaimed for 

breach of contract based upon GAIC’s failure to defend and indemnify; breach of the implied 

covenant of good faith and fair dealing based upon GAIC’s allegedly unreasonable (1) refusal to 

pay defense costs for the underlying action after the Travelers Policy was exhausted, (2) failure to 

accept the settlement offer in the underlying action, (3) failure to conduct a full, fair and thorough

investigation, (4) failure to give the Quintana HOA at least as much consideration as its own 

interests, (5) failure to diligently search for and consider evidence that would have supported 

payment of defense costs and settlement; and (6) misrepresentation of the insurance policy terms

and declaratory relief. 

Gregg also filed an Answer, admitting that he was a member of the Board of Directors and 

an officer for the Quintana HOA, but indicating that he did not hold such positions as of January 

30, 2008. MSS 31. Gregg was, however, a member of the Quintana Architectural Review Board 

at that time. RJN Ex. 6, ¶17. 

Travelers Policy

The Travelers Policy contains the following Liability Coverage Insuring Agreement 

relevant to GAIC’s alleged obligations under the GAIC Umbrella Policy:

Liability Coverage

A. The Insurer will pay on behalf of the Insureds Loss up to the 

available maximum aggregate Limit of Liability set forth in Item 3 

of the Declarations which is incurred by the Insured as the result of 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

any Claim first made against the Insureds during the Policy Period 

or the Discovery Period, if purchased, for a Wrongful Act.

Request for Judicial Notice2(“RJN”) Ex. 5, p. 23. The Travelers Policy provides the following 

regarding defense coverage:

Defense Coverage

B. The Insurer shall have the right and duty to defend any Claim 

covered by this Policy, even if any of the allegations are groundless, 

false or fraudulent. The Insurer’s duty to defend shall cease upon 

the exhaustion of the Limit of Liability set forth in Item 3 of the 

Declarations.

RJN Ex. 5, p.6. A “Claim” is defined to mean “a written demand for monetary or non-monetary 

relief.” GAIC RJN Ex. 5, p. 161. “Loss” is defined to mean, in relevant part, the total amount 

“any Insured becomes legally obligated to pay as the result of all Claims first made against any 

Insured during the Policy Period for Wrongful Acts including, but not limited to, damages 

(including punitive or exemplary damages where insurable under applicable law), judgments, 

settlements and Defense Costs.” GAIC’s Moving Separate Statement (“MSS”) 14. The Travelers 

Policy defines “Wrongful Acts” to mean “any error, misstatement, misleading statement, act, 

omission, neglect, or breach of duty committed or attempted, or allegedly committed or 

attempted,” by the Quintana HOA or one or more Insured Persons “in their representative 

capacities as such.” MSS 15. Gregg is an “Insured Person” and “Insured” under the Travelers 

Policy. The Travelers Policy contains two endorsements that are relevant to the coverage dispute: 

an exclusion for the cost of injunctive relief (“Cost of Injunctive Relief Exclusion”); and an 

exclusion regarding Builder/Board Members (“Claims Against Builder/Developer Exclusion”).

MSS 16, 25. 

GAIC Umbrella Policy

The GAIC Umbrella Policy issued to Quintana HOA, and Gregg qualifies as an “Insured 

Person” and “Insured” under that Policy. The GAIC Umbrella Policy incudes an endorsement 

setting forth an exclusion for any “wrongful act” on the part of a builder, developer, sponsor or 

 

2 GAIC’s Request for Judicial Notice is granted.
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

anyone affiliated with a builder, developer or sponsor (“Developer Wrongful Act Exclusion”).

MSS 24.

III. STANDARDS

A motion for summary judgment should be granted if Athere is no genuine dispute as to any 

material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a);

Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the 

initial burden of informing the Court of the basis for the motion and identifying the portions of the 

pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the 

absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 

2548, 91 L.Ed.2d 265 (1986).

If the moving party meets this initial burden, the burden shifts to the non-moving party to 

go beyond the pleadings and designate "specific facts showing that there is a genuine issue for 

trial." Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. The court must regard as true the opposing 

party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324. 

However, the mere suggestion that facts are in controversy, as well as conclusory or speculative 

testimony in affidavits and moving papers, is not sufficient to defeat summary judgment. See

Thornhill Publishing Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). To meet this burden, 

the non-moving party must come forward with admissible evidence. Fed. R. Civ. P. 56(c); see

also, Hal Roach Studios, Inc. v. Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). 

A genuine issue for trial exists if the non-moving party presents evidence from which a 

reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the 

material issue in his or her favor. Anderson, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 

202; Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991). Conversely, summary judgment 

must be granted where a party "fails to make a showing sufficient to establish the existence of an 

element essential to that party's case, on which that party will bear the burden of proof at trial." 

Celotex, 477 U.S. at 322. 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

Rule 56(f), Fed.R.Civ.P., provides that “[a]fter giving notice and a reasonable time to 

respond, the court may” grant summary judgment in favor of the nonmovant, grant the motion on 

grounds not raised by the party, or consider summary judgment on its own after identifying for the 

parties material facts that may not be genuinely in dispute.

IV. DISCUSSION

A liability insurer owes a broad duty to defend its insured against claims that create a 

potential for indemnity. Montrose Chemical Corp. v. Superior Court, 6 Cal.4th 287, 295 (1993)

(quoting Gray v. Zurich Insurance Co., 65 Cal.2d 263 (1966)). “Implicit in this rule is the 

principle that the duty to defend is broader than the duty to indemnify; an insurer may owe a duty 

to defend its insured in an action in which no damages ultimately are awarded. [Citations.]” 

Montrose, 6 Cal.4th at 295 (quoting Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 1081 

(1993)).

A. “Exhaustion” of Travelers Policy

Generally, the primary insurer alone owes a duty to provide and bear all costs of the 

defense. Diamond Heights Homeowners Assn. v. National American Ins. Co., 227 Cal.App.3d 

563, 577(1991). “The excess carrier has no right or duty to participate in the defense, absent 

contract language to the contrary, until the primary policy limits are exhausted.” Id. 

It is undisputed that the Travelers Policy must be exhausted before GAIC’s coverage 

attaches. According to the Quintana HOA, the Travelers Policy was exhausted as part of the 

settlement of the underlying action. GAIC does not respond directly to the Quintana HOA’s 

exhaustion argument. GAIC Reply, p.5. Instead, citing to Signal Cas. v. Harbor Ins. Co., 27 

Cal.3d 359, 368 (1980), GAIC contends that its alleged duty to defend or pay defense costs is now 

moot in light of the settlement. In Signal, exhaustion of the primary insurance policy and 

settlement of claims occurred simultaneously. The Signal court accordingly held that the excess 

insurance carrier was not liable for defense costs incurred by the primary carrier prior to the 

settlement. Like the excess carrier in Signal, GAIC is not liable for defense costs incurred before 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

the Travelers Policy was exhausted upon settlement of the underlying action. 

The issue remains, however, whether GAIC’s duty to defend or indemnify arose when 

Travelers committed what remained of its Policy to the proposed settlement, thereby effectively 

exhausting the Travelers Policy. The Signal case does not address this issue. Further, because the 

Quintana HOA has counterclaimed for breach of contract, among other things, the issue is not 

rendered moot by the settlement, notwithstanding GAIC’s assertion to the contrary. Whether 

GAIC had a duty to defend or indemnify upon exhaustion of the Travelers Policy depends upon 

the terms of the Travelers Policy and the GAIC Umbrella Policy, which are discussed below.

B. Whether GIBCO Partners’ Claim for Injunctive Relief is a “Claim” Within the Meaning of the 

Insurance Policies

The Superior Court issued a ruling in the underlying action barring GIBCO Partners from 

asserting claims for damages. Therefore, at the time of the proposed settlement of the underlying 

action, GIBCO Partners was limited to claims for injunctive relief and attorney fees. The 

Travelers Policy, which GAIC is bound by, defines “Claim” to mean “a written demand for 

monetary or non-monetary relief.” GAIC RJN Ex. 5, p. 161. It follows that the Superior Court’s 

ruling limiting GIBCO Partners to non-monetary claims did not bar coverage.

C. Whether the Cost of Injunctive Relief Exclusion Bars Coverage of Defense Costs

As set forth previously, the Travelers Policy defines “Loss” to mean the total amount “any 

Insured becomes legally obligated to pay as the result of all Claims first made against any insured 

during the Policy Period for Wrongful Acts including, but not limited to, damages . . . judgments, 

settlements and Defense Costs.” GAIC contends that the claims for declaratory relief against the 

Quintana HOA do not constitute claims for a covered “Loss,” because there is no “amount” that 

the Quintana HOA can be “legally obligated to pay” in connection with the declaratory relief 

claims. GAIC’s Motion, p. 19. More specifically, GAIC contends the Travelers Policy’s Cost of 

Injunctive Relief Exclusion bars coverage. The Quintana HOA counters that it incurred a “Loss” 

in the form of “Defense Costs,” and if it had not entered into the settlement with GIBCO Partners, 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

it would have continued to incur “Defense Costs” through the conclusion of the underlying 

litigation. The Quintana HOA contends that GAIC was obligated to acknowledge its duty to pay 

for future Defense Costs upon exhaustion of the Travelers Policy.

GAIC’s interpretation of the Cost of Injunctive Relief Exclusion is unpersuasive. The Cost 

of Injunctive Relief Exclusion provision includes an exception for “Defense Costs” associated 

with claims for injunctive or declaratory relief as follows:

The Insurer shall not be liable to make any payment for Loss, other 

than Defense Costs, in connection with any Claim made against any 

of the Insureds which constitute costs and expenses incurred or to be 

incurred to comply with an order, judgment or award of injunctive 

or other equitable relief of any kind, or that portion of a settlement 

encompassing injunctive or other equitable relief . . . .

MSS 16. Therefore “Defense Costs” are a covered “Loss,” even if the “Defense Costs” are 

incurred in connection with a claim for non-monetary relief, such as the claims made by GIBCO 

Partners. The Cost of Injunctive Relief Exclusion does not bar coverage of Defense Costs.

D. Whether Prevailing Party Attorney Fees Are a Covered “Loss”

GAIC contends that prevailing party attorney fees are not a covered “Loss,” citing Big 5 

Corp. v. Gulf Underwriters Ins. Co., No. 02-3320 WJR, 2003 WL 22127029, at *3 (C.D. Cal. July 

14, 2003) (insured not entitled to recover attorney fees and defense costs associated with loss that 

was not covered under policy); see also Cutler-Orosi Unified School District v. Tulare County 

School Dist. Liability/Property Self-Insurance-Authority, 31 Cal.App.4th 617, 632 (1994) 

(concluding “[a]ttorney fees therefore are inconsistent with the concept of ‘damages’ as the term is 

used in its ordinary and popular sense”); Health Net v. RLI Ins. Co., 206 Cal.App.4th 232, 256-57 

(2012) (attorney fees are inconsistent with the meaning of the word damages in the ordinary and 

popular sense); Screen Actors Guild-American Federation of Television and Radio Artists v. 

Federal Ins. Co., 636 Fed.Appx. 409, 410 (9th Cir. 2016) (“SAG”) (SAG not entitled to coverage 

based solely on a claim for attorney’s fees untethered to any insurable loss).

Here, GIBCO Partners’ claims for non-monetary damages gave rise to a potential “Loss” 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

in the form of prevailing party attorney fees. As discussed previously, the Travelers Policy 

defines “Loss” to mean the total amount “any Insured becomes legally obligated to pay as the 

result of all Claims.” The California Corporations Code and the Davis-Stirling Act both authorize 

the award of prevailing party attorney fees. See Cal. Corp. Code §§8323, 8337; Cal. Civil Code 

§5975(c). Thus, at the time the Quintana HOA was evaluating the proposed settlement, the 

Quintana HOA faced the potential of becoming legally obligated to pay attorney fees either by 

reason of the settlement of the underlying action, or alternatively after losing at trial on the merits. 

The cases relied upon by GAIC are distinguishable. In Big 5 Corp., supra, the parties 

disputed whether an underlying claim for unpaid wages that resulted in a settlement was covered 

under the insurance policy at issue. The court held that the underlying claim for wages was not a 

covered loss under the policy, and it followed that the insured was not entitled to recover the 

settlement nor the associated attorney fees and costs. Big 5 Corp. v. Gulf Underwriters Ins. Co., 

2003 WL 22127029, at *3. In contrast, the GIBCO Partners’ declaratory relief claims are covered 

“Claims” under the terms of the Travelers Policy. The Cost of Injunctive Relief Exclusion does 

not bar declaratory relief claims; rather this provision limits the amount of “Loss” recoverable on 

such claims.

GAIC’s reliance on Cutler-Orosi, supra, and Health Net, supra, is also misplaced. In both 

of these cases, the policies at issue required the insurers to pay all sums which the insured became 

legally obligated to pay as “Damages.” Here, the Travelers Policy provides broader coverage,

requiring the insured to pay “the total amount . . . any Insured becomes legally obligated to pay as 

the result of all Claims.” 

The insurance policy at issue in SAG, supra, was similar to the Travelers Policy in this 

case insofar as it provided coverage for “Loss.” Nevertheless, the SAG decision does not lend 

support for GAIC’s position. In SAG, the insured organization was sued in an underlying action 

for failure to distribute foreign royalties to its members. The parties reached a settlement which 

required the insured organization to pay the foreign royalties to its members. The insured 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

organization also agreed to pay an enhancement payment to the named plaintiff and an award of 

attorney fees and costs totaling $330,000. The insured organization requested reimbursement 

from its insurer for the $330,000. The Ninth Circuit determined that the insured organization had 

a pre-existing obligation to pay the foreign royalties to its members, and therefore its failure to 

honor that obligation was not a covered “Loss” resulting from a wrongful act. SAG, 636 

Fed.Appx. at 410. In contrast, GIBCO Partners’ Amended Revised Sixth Amended Complaint

included not only claims against the Quintana HOA to enforce arguably pre-existing contractual 

duties, but also claims for “wrongful acts” such as violations of the Davis-Stirling Act and 

California Corporations Code for which GIBCO Partners sought prevailing party attorney fees. In 

sum, GAIC has not established that prevailing party attorney fees are not a covered “Loss.”

GAIC next contends that the Quintana HOA’s claim for prevailing party attorney’s fees is 

moot because the underlying suit has been settled and dismissed. The Quintana HOA, however, 

has asserted counterclaims against GAIC for, among other things, breach of contract and breach of 

the implied covenant of good faith and fair dealing, which require resolution of the coverage 

issues. 

E. Gregg

 With respect to Gregg, GAIC alleges that it has no obligation to defend and indemnify due 

to the application of the Developer Wrongful Act Exclusion in the GAIC Umbrella Policy, or 

alternatively the Builder/Developer Exclusion in the Travelers Policy. Gregg filed a Notice of 

Non-Opposition to the motion. 

The GAIC Umbrella Policy contains an endorsement setting forth the following exclusion 

for a “wrongful act”:

Any “wrongful act” which is directly or indirectly related in whole 

or in part to an actual or alleged “wrongful act” on the part of a 

builder, developer or sponsor or anyone affiliated with a builder, 

developer or sponsor. This exclusion shall not apply to claims while 

such an “Insured” is a member on the “Insured’s” board of directors 

and in the capacity as such.

As used in this endorsement, “wrongful act” means any actual or 
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

alleged error, misstatement, mispleading statement, act, or omission, 

neglect or breach of duty.

MSS 24. The undisputed evidence shows that Gregg was “affiliated” with the developer and not 

serving on the Quintana HOA’s Board of Directors at the time he allegedly made 

misrepresentations. Therefore coverage for Gregg is barred by the exclusion in the GAIC 

Umbrella Policy cited above. 

The Travelers Policy contains an endorsement setting forth the following definitions and 

exclusions regarding a Builder/Board Member:

1. For purposes of this endorsement, the following terms have the 

following meanings:

a. “Builder/Developer Board Member” means any person appointed 

or elected to serve on the board of directors of the Parent 

Organization by the builder, developer or sponsor of the Parent 

Organization, and who was both a director or officer of the Parent 

Organization and a director, officer, employee or agent of such 

builder, developer, or sponsor of the Parent Organization.

b. “Policy Year” means each year of the Policy Period beginning 

with the Policy Inception Date and ending one year thereafter and 

each successive year until canceled or non-renewed.

2. The Insurer shall not be liable to make any payment for Loss in 

connection with any Claim made against any Builder/Developer 

Board Member after the end of the Policy year in which such 

Builder/Developer Board Member ceases to serve on the board of 

directors of the Parent Organization.

MSS 25. Gregg was not serving as a “Builder/Developer Board Member” at the time he allegedly 

made misrepresentations. Therefore, coverage for Gregg is also barred by the Travelers’ 

Builder/Developer exclusion.

//

//

//

//
Case No.: 5:17-cv-00693-EJD

ORDER GRANTING IN PART AND DENYING IN PART GAIC’S MOTION FOR 

SUMMARY JUDGMENT; DENYING QUINTANA HOA’S RULE 56(F) MOTION

14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

V. CONCLUSION

For the reasons set forth above, GAIC’s motion for summary judgment is GRANTED as to 

Gregg, and DENIED as to the Quintana HOA. The Quintana HOA’s Rule 56(f) is denied as 

premature. 

IT IS SO ORDERED.

Dated: February 27, 2018

______________________________________

EDWARD J. DAVILA

United States District Judge