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 Californi

a

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

TRAVELERS INDEMNITY COMPANY 

OF CONNECTICUT, et al., 

Plaintiffs, 

v. 

PREMIER ORGANICS, INC., 

Defendant. 

Case No.17-cv-00302-YGR 

ORDER GRANTING DEFENDANT'S MOTION 

TO ALLOW TIME FOR DISCOVERY;

CONTINUING BRIEFING AND HEARING ON 

PLAINTIFF'S MOTION FOR SUMMARY 

JUDGMENT 

Re: Dkt. Nos. 51, 57 

Now before the Court is defendant Premier Organics, Inc.'s (“Premier Organics”) motion 

to allow time for discovery and continue all briefing and hearing on plaintiffs Travelers Indemnity 

Company of Connecticut’s and Travelers Property Casualty Company of America’s (collectively 

“Travelers”) motion for summary judgment pursuant to Fed. R. Civ. Pro. 56(d). (Dkt. No 57.) 

Having carefully considered the pleadings and the papers submitted on this motion, and for the 

reasons set forth below, defendant’s motion is GRANTED. All briefing and hearing dates regarding 

plaintiffs’ motion for summary judgment are CONTINUED as set forth herein. 

I. RELEVANT BACKGROUND

This declaratory relief action arises from a punitive class action captioned Alan Ducorsky 

v. Premier Organics, Alameda County Superior Court, Case No. HG16801566 (the “Ducorsky 

Class Action”) wherein the class action consumer plaintiffs sought damages from Premier arising 

from its sale of coconut oil. The class action is now-tentatively-resolved and Travelers has 

contributed to the settlement, with a reservation of rights. Travelers submits that no potential for 

insurance coverage ever existed under Premier’s general liability policies. Specifically, Travelers 

argues that the insurance policy covers “bodily injury” caused by an “occurrence” and that the 

Ducorsky Class Action does not allege “bodily injury.” Premier disagrees positing that because 
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 Californi

a

the class action plaintiffs alleged that coconut oil caused health-related harms, it may fall within 

the purview of bodily injury. 

Pursuant to the scheduling order entered in this case on July 10, 2017, the Court permitted 

Travelers to file an early summary judgment motion, but also allowed Premier to file a motion 

specifying whether and which discovery it needed, if at all, to oppose the motion. (Dkt. No. 41.) 

Travelers contends that no discovery is required to resolve its motion. (Dkt. No. 39.) 

II. LEGAL FRAMEWORK

A. SUMMARY JUDGMENT

 “[S]ummary judgment is premature unless all parties have ‘had a full opportunity to 

conduct discovery.’” Convertino v. DOJ, 684 F.3d 93, 99 (D.C. Cir. 2012) (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). Fed. R. Civ. Pro. 56(d) provides that “[i]f a 

nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts 

essential to justify its opposition, the court may: defer considering the motion . . . [or] allow time 

to obtain affidavits or declarations or take discovery.” The “Supreme Court has restated the rule as 

requiring, rather than merely permitting, discovery ‘where the nonmoving party has not had the 

opportunity to discover information that is essential to its opposition.’” Metabolife Int'l, Inc. v. 

Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (quoting Anderson, 477 U.S. at 250 n. 5). 

B. CONTRACTUAL INTERPRETATION

The California Court of Appeals decision in London Mkt. Insurers v. Super. Ct., 146 

Cal.App.4th 648, 656 (2007) provides the relevant framework for evaluating the instant motion 

under California law: 

Although insurance contracts have special features, they are still contracts to 

which the ordinary rules of contractual interpretation apply. Foster–Gardner, Inc. 

v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 868, 77 Cal.Rptr.2d 107, 

959 P.2d 265; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264, 10 

Cal.Rptr.2d 538, 833 P.2d 545.) Thus, the mutual intention of the contracting 

parties at the time the contract was formed governs. (Civ.Code, § 1636; Foster–

Gardner, Inc., supra, 18 Cal.4th at p. 868, 77 Cal.Rptr.2d 107, 959 P.2d 265.) We 

ascertain that intention solely from the written contract if possible, but also 

consider the circumstances under which the contract was made and the matter to 

which it relates. (Civ.Code, §§ 1639, 1647; American Alternative Ins. Corp. v. 

Superior Court (2006) 135 Cal.App.4th 1239, 1245, 37 Cal.Rptr.3d 918.) We 

consider the contract as a whole and interpret the language in context, rather than 
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 Californi

a

interpret a provision in isolation. (Civ.Code, § 1641; American Alternative Ins. 

Corp., supra, 135 Cal.App.4th at p. 1245, 37 Cal.Rptr.3d 918.) We interpret 

words in accordance with their ordinary and popular sense, unless the words are 

used in a technical sense or a special meaning is given to them by usage. 

(Civ.Code, § 1644; American Alternative Ins. Corp., supra, 135 Cal.App.4th at p. 

1245, 37 Cal.Rptr.3d 918.) 

A policy provision is ambiguous if it is capable of two or more reasonable 

constructions. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18, 44 

Cal.Rptr.2d 370, 900 P.2d 619; Bay Cities Paving & Grading, Inc. v. Lawyers’ 

Mutual Ins. Co. (1993) 5 Cal.4th 854, 867, 21 Cal.Rptr.2d 691, 855 P.2d 1263.) In 

determining if a provision is ambiguous, we consider not only the face of the 

contract but also any extrinsic evidence that supports a reasonable interpretation. 

(Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37, 

39–40, 69 Cal.Rptr. 561, 442 P.2d 641.) Even apparently clear language may be 

found to be ambiguous when read in the context of the policy and the 

circumstances of the case. (American Alternative Ins. Corp., supra, 135 

Cal.App.4th at p. 1246, 37 Cal.Rptr.3d 918, citing MacKinnon v. Truck Ins. 

Exchange (2003) 31 Cal.4th 635, 652, 3 Cal.Rptr.3d 228, 73 P.3d 1205.) 

 

If policy language is ambiguous, an interpretation in favor of coverage is 

reasonable only if it is consistent with the objectively reasonable expectations of 

the insured. (Bank of the West, supra, 2 Cal.4th at p. 1265, 10 Cal.Rptr.2d 538, 

833 P.2d 545.) Thus, the court must determine whether the coverage under the 

policy that would result from such a construction is consistent with the insured’s 

objectively reasonable expectations. (Nissel v. Certain Underwriters at Lloyd’s of 

London (1998) 62 Cal.App.4th 1103, 1111–1112, 73 Cal.Rptr.2d 174.) 

In London Market, the Court considered the drafting history of the policy term in question. 

Under California law, the “fundamental goal of contractual interpretation is to give effect 

to the mutual intention of the parties.” Bank of the W. v. Superior Court, 2 Cal.4th 1254, 1264 

(1992). “The mutual intention to which the courts give effect is determined by objective 

manifestations of the parties’ intent, including the words used in the agreement, as well as 

extrinsic evidence of such objective matters such as the surrounding circumstances under which 

the parties negotiated or entered into the contract; the object, nature and subject matter of the 

contract; and the subsequent conduct of the parties.” Morey v. Vannucci, 64 Cal.App.4th 904, 912 

(1998) (emphasis supplied). “Such intent is to be inferred, if possible, solely from the written 

provisions of the contract.” Foster-Gardner, Inc. v. National Union Fire Ins. Co., 18 Cal.4th 857, 

868 (1998) (citation omitted). However, in determining whether an ambiguity exists in the written 

provisions, “language in a contract must be construed in the context of the instrument as a whole 
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 Californi

a

and in the circumstances of that case.” Id. (Internal quotations and citation omitted). Extrinsic 

evidence may be admissible to “prove that a term is, in fact, ambiguous.” Lexington Ins. Co. v. 

Commonwealth Ins. Co., 1999 WL 33292943, *4 (N.D. Cal. 1999) (citing Pac. Gas & Elec., 69 

Cal.2d at 37). 

III. DISCUSSION

Plaintiffs’ motion for summary judgment hinges in large part on the interpretation of two 

policy terms, namely “bodily injury” and “occurrence.” (See Dkt. 51 at 1.) In essence, Travelers 

argues that the consumer class action is merely one of a labeling concern. While those allegations 

certainly exist, Travelers chooses to ignore the allegations regarding the harm to one’s health. 

(See Dkt. No. 1, Complaint for Declaratory Judgment and Reimbursement ¶¶ 12-21, 36-46.) It is 

on these that defendant focuses. 

As discussed above, California law requires the Court to interpret the terms in light of 

extrinsic evidence regarding the drafting, negotiation, and performance of the policy. See Pac. 

Gas & Elec, 69 Cal.2d at 37; London Mkt. Insurers, 146 Cal.4th at 661-62. Accordingly, 

defendant is entitled to discovery of extrinsic evidence relevant to whether these terms are “in fact, 

ambiguous.” Lexington, 1999 WL 33292943, *4 (citing Pac. Gas & Elec., 69 Cal.2d at 37). Such 

extrinsic evidence is not unlimited but rather focuses on “the surrounding circumstances under 

which the parties negotiated or entered into the contract; the object, nature and subject matter of 

the contract; and the subsequent conduct of the parties.” Morey, 64 Cal.App.4th at 912; see also 

Hernandez v. Badger Construction Equipment Co. 28 Cal.App.4th 1791, 1814 (1994). 

 Here, Premier has provided a declaration, (Dkt. No. 58, Declaration of Thiele R. Dunaway 

¶¶ 20-30 (“Dunaway Decl.”)), which states that without discovery on certain categories of 

extrinsic evidence it “cannot present facts essential to justify its opposition” to plaintiffs’ summary 

judgment motion. See Fed. R. Civ. Pro. 56(d). Specifically, defendant avers that such evidence 

“will assist in determining what facts relating to the Ducorsky claims were known by Travelers at 

the time it made its coverage decisions . . . how Travelers has interpreted the language in the 

policies, as well Travelers’ intent with respect to the policies . . . . what risks Travelers expected to 

cover when it used the terms at issue. . . . [and] how Travelers has interpreted the pertinent 
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 Californi

a

provisions of the policies as well as how it has evaluated similar claims in making a coverage 

determination. . . .” (Dunaway Decl. ¶¶ 23, 25-26, 30.) According to defendants, relevant and 

discovery evidence includes: 

all documents specifically referring to or related to Premier and the Ducorsky 

Action . . . . the identity of all claims adjusters who handled Premier’s claim and 

the identity of all persons who evaluated, analyzed or otherwise participated in the 

coverage determination for Premier. . . . Travelers’ claims manuals, underwriting 

files and manuals, and Travelers’ internal communications related to the 

interpretation of the terms ‘bodily injury,’ ‘occurrence,’ ‘accident,’ ‘expected or 

intended,’ ‘personal injury,’ and ‘advertising injury[]’. . . . documents related to 

information Travelers’ insurance adjusters received while attending seminars, 

conferences, presentations and/or other meetings relating to interpretation of those 

policy terms. . . . all documents related to the action[s] styled Hunter v. Nature’s 

Way Products, LLC and Schwabe North America, Inc. . . . [and] Sonner v. 

Schwabe North America, Inc. and Nature’s Way Products, LLC . . . . documents 

relating to any other Travelers’ insureds where third party plaintiffs have asserted 

claims similar to those alleged against Premier in the Ducorsky Action . . . the 

identification of all actions filed against Travelers’ insureds asserting claims 

against defendants regarding the sale of herbal supplements. . . . [and] expenses 

actually incurred by Travelers [in providing a defense to Premier] 

(Dkt. No. 57 at 15-19.) 

 As an initial matter, the Court finds defendant’s proposed discovery unduly burdensome 

and inconsistent with the revisions to the Code which now provides as to scope, discovery of “any 

nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs 

of the case, considering the importance of the issues at stake in the action, the amount in 

controversy, the parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or expense of the 

proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 

Much of defendant’s proposed discovery appears to be irrelevant as to whether the policy 

terms at issue are ambiguous and extends beyond the parties’ “mutual intention.” Further, none 

of the discovery which defendant proposes speaks to “the objectively reasonable expectations of 

the insured.” London Mkt. Insurers, 146 Cal.App.4th at 656 (citing Bank of the W., 2 Cal.4th at 

1065. 

Accordingly, at this juncture the Court finds that defendant is only entitled to discovery relevant to 
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 Californi

a

whether there exists ambiguity with regard to the policy terms “bodily injury” and “occurrence.” 

This includes, to the extent not already produced, (i) all documents specifically referring to 

Premier and the Ducorsky action which discuss the meaning of the terms “bodily injury” or 

“occurrence”; (ii) underwriting files and manuals specifically related to the terms “bodily injury” 

or “occurrence”; (iii) the identity of all claims adjusters who handled defendant’s claim; (iv) the 

identity of all persons who evaluated, analyzed or otherwise participated in the coverage 

determination for defendant; (v) Travelers’ internal communications related to the interpretation of 

the terms “bodily injury” and “occurrence”; and (vi) expenses actually incurred by Travelers in 

providing a defense to Premier, broken down for each party which shared defense costs.1 Under 

Rule 56, the Court must “defer considering the [summary judgment] motion” and allow time for 

defendant to take limited discovery of these materials only. See Fed. R. Civ. Pro. 56; Metabolife, 

264 F.3d at 846 (quoting Anderson, 477 U.S. at 250 n. 5). 

IV. CONCLUSION 

 Having carefully considered the pleadings and the papers submitted on this motion, and for 

the reasons set forth above, defendant’s motion to continue all briefing and hearing on plaintiffs’ 

motion for summary judgment is GRANTED. Plaintiffs’ pending motions are DENIED WITHOUT 

PREJUDICE to refiling once limited discovery is conducted. 

 The Court hereby SETS a compliance hearing for October 20, 2017 on the Court’s 9:01 

 1

 By contrast, at this juncture defendant is not entitled to discovery regarding the identity 

of all persons who approved the language used in all Travelers commercial general liability 

policies; Travelers’ claims manuals, underwriting files and manuals related to terms other than 

“bodily injury” or “occurrence”; all actions ever filed in any court against a Travelers insured 

asserting similar claims, including each attorney representing a plaintiff such actions; all persons 

who communicate with any governmental regulatory agency referring or related to Travelers 

commercial general liability policies; all persons who testified as expert witnesses on behalf of 

Travelers in the past ten years in any action with an insured related to any dispute regarding a duty 

to defend or indemnify under a Travelers commercial general liability policy; documents related to 

information Travelers’ insurance adjusters received while attending seminars, conferences, 

presentations and/or other meetings relating to interpretation of those policy terms; documents 

related to the Hunter and Sonner actions; other Travelers’ insureds where third party plaintiffs 

have asserted claims similar to those alleged against Premier in the Ducorsky action; Travelers’ 

internal communications related to the interpretation of the terms other than “bodily injury” or 

“occurrence;” or actions filed against Travelers’ insureds asserting claims regarding the sale of 

herbal supplements. The Court will consider whether defendant is entitled to these materials at a 

later date if Premier is able to establish that the terms at issue are in fact ambiguous, as provided 

herein. 
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 Californi

a

a.m. calendar, in the Federal Courthouse, 1301 Clay Street, Oakland, California, Courtroom 1, 

for the filing of a JOINT discovery plan with potential dates for the refiling of plaintiffs’ motion 

for summary judgment. Five (5) business days prior to the date of the compliance hearing, the 

parties shall file their JOINT discovery plan with potential dates for the refiling of plaintiffs’ 

motion for summary judgment or a one-page JOINT STATEMENT setting forth an explanation 

regarding the failure to comply. 

If compliance is complete, the parties need not appear and the compliance hearing will be 

taken off calendar. 

This terminates Docket No. 51, 57. 

IT IS SO ORDERED. 

Dated: 

 

YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT JUDGE

September 29, 2017