Filed 4/14/22; Certified for Publication 5/5/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

MARYAM GHUKASIAN,

 Plaintiff and Appellant,

v.

AEGIS SECURITY INSURANCE 

COMPANY,

Defendant and Respondent.

B311310

(Los Angeles County

Super. Ct. No.

20STCV15761)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Monica Bachner, Judge. Affirmed.

Law Offices of Dale E. Washington, Dale E. Washington;

The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and 

Appellant.

Selman Breitman, Sheryl W. Leichenger, Eldon S. Edson, 

and Laura R. Ramos for Defendant and Respondent.
2

INTRODUCTION

Maryam Ghukasian sued Aegis Security Insurance 

Company (Aegis) for breach of contract, insurance bad faith, and

declaratory relief after Aegis denied her tender of a lawsuit

brought against her by her neighbors. The underlying lawsuit

alleged Ghukasian graded land and cut down trees on her

neighbors’ property. The trial court granted Aegis’s motion for

summary judgment, holding Aegis had no duty to defend because

Ghukasian’s homeowner’s policy did not provide coverage for

nonaccidental occurrences. It explained that intentionally cutting

trees on the neighbors’ land, even if Ghukasian acted on the good

faith but mistaken belief that the trees were on her land, is not

an accident for purposes of insurance coverage.

Ghukasian appeals from the judgment, contending our 

Supreme Court’s decision in Liberty Surplus Ins. Corp. v. 

Ledesma & Meyer Construction Co. (2018) 5 Cal.5th 216 (Liberty 

Surplus) impliedly disapproved caselaw holding an intentional 

act is not an “accident,” as the term is used in the coverage clause 

of a liability policy, even if the intentional act causes unintended 

harm. We decline to read Liberty Surplus in that fashion, and 

therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are undisputed. Ghukasian owns a 

home in Glendale, California. Ghukasian purchased a 

homeowner’s policy from Aegis for the period between June 13, 

2018 to June 13, 2019. In August 2018, she hired contractors to

level land and clear trees on land she understood to be a part of 

her property. The land Ghukasian’s contractor cleared and 

leveled was not owned by Ghukasian, however, but by 

Ghukasian’s neighbors, Vrej and George Aintablian (collectively, 

the neighbors).
3

In February 2019, the neighbors sued Ghukasian and 

others, including the contractor, in what we will refer to as the 

underlying action. The complaint alleged two causes of action

against Ghukasian: trespass and negligence. Both causes of 

action alleged the same facts: Ghukasian and her contractor 

“entered upon [the neighbors’] [p]roperty without [the neighbors’]

consent,” “made deep cuts . . . into a natural hill on [the 

neighbors’ property],” “caused a natural swale located on 

[neighbors’ property] to be filled with dirt[,]” which “prevented 

the flow of water in and through the swale,” and “removed, cut 

down and carried off timber, trees, and underwood from [the 

neighbors’ property].”

Ghukasian tendered the underlying action to Aegis. The 

policy provides coverage if a “suit is brought against [Ghukasian] 

for damages because of . . . property damage caused by an 

occurrence to which this coverage applies.” An “occurrence” is 

defined in turn as “an accident, including continuous or repeated 

exposure to substantially the same general harmful conditions, 

which results during the policy period in . . . [p]roperty damage.” 

Aegis denied coverage for the underlying action on the ground it 

owed no duty to defend because the complaint alleged intentional 

(as opposed to accidental) conduct and various exclusions in the 

policy barred coverage.

Ghukasian sued Aegis for breach of the insurance contract, 

declaratory relief, and insurance bad faith. All three causes of 

action are based on Aegis’s denial of Ghukasian’s requested 

coverage of claims brought against her in the underlying action.

Aegis moved for summary judgment on the ground it had no duty 

to defend Ghukasian in the underlying action as a matter of law 

and therefore, it did not breach the insurance contract. Aegis 

contended there was no coverage for the underlying action 

because it did not allege an “occurrence,” as required for 

coverage, and it was excluded by various policy exclusions. The 

trial court agreed, explaining: Ghukasian’s “mistaken belief as to 
4

the boundaries of the property does not transform her intentional 

act [of hiring contractors to clear and level land] into an accident 

for the purposes of being covered as an ‘occurrence’ under the 

Policy.” It also concluded the underlying action’s allegations 

against Ghukasian “involved conduct excluded from coverage” 

under certain exclusions in the policy. 

The trial court entered judgment in favor of Aegis. 

Ghukasian appeals from the judgment. 

DISCUSSION

A. Standard of Review and Duty to Defend Principles

“[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); see 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 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. (Code Civ. Proc., § 437c, subds. (c), (f).) “Our 

review of the interpretation of an insurance contract on 

undisputed facts is also de novo.” (Albert v. Mid-Century Ins. Co.

(2015) 236 Cal.App.4th 1281, 1289 (Albert).)

“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 
5

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.)” (Albert, supra, 236 Cal.App.4th

at p. 1290.) “‘[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.’ [Citation.]” (Ibid.)

In contrast, an insured must prove its claim may fall within 

policy coverage, even when the insurer has moved for summary 

judgment. (Ibid.)

B. The Undisputed Evidence Establishes Aegis Did Not 

Have a Duty to Defend

As discussed above, the policy at issue covers property 

damage resulting from an occurrence, which is defined as an 

accident. Relying on Albert, supra, 236 Cal.App.4th 1281, and 

Fire Ins. Exchange v. Superior Court (2010) 181 Cal.App.4th 388 

(Fire Exchange), the trial court concluded Ghukasian’s deliberate 

act of hiring contractors to clear and level the neighbors’ land, 

which was ultimately cleared and leveled, constituted intentional 

conduct. That conduct, therefore, was not an accident within the 

meaning of the policy.

Albert is directly on point. There, the plaintiff’s neighbor 

sued plaintiff for damage caused to his property when plaintiff 

erected an encroaching fence and pruned trees on his property. 

(Albert, supra, 236 Cal.App.4th at p. 1284.) After plaintiff 

tendered the claim to her insurer, and the insurer denied 

coverage, plaintiff sued the insurer for declaratory relief, breach 

of contract and bad faith. (Ibid.) The trial court granted the 

insurer’s motion for summary judgment. (Ibid.) The Court of 

Appeal affirmed the judgment, holding the neighbor’s claims 

against plaintiff “arise from nonaccidental conduct, outside the 

terms of the policy” (the policy defined an “occurrence” as an 
6

“accident”). (Ibid.) The court explained: “[I]t is completely

irrelevant that plaintiff did not intend to damage the trees,

because she intended for them to be pruned. [Citations.]

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 with the city’s brush

clearance ordinance.” (Id. at p. 1292.)

In reaching its conclusion, Albert relied on Fire Exchange

for the proposition that “[w]hen 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.” (Albert, supra, 236

Cal.App.4th at p. 1291, quoting Fire Exchange, supra, 181

Cal.App.4th at p. 392.) In Fire Exchange, the court held there

was no accident (and therefore, no insurance coverage) where the

policyholders constructed a building that encroached on their

neighbor’s property. (Fire Exchange, supra, 181 Cal.App.4th at p.

390.) The court reasoned: “Accepting their contention that they

believed they owned the five-and-one-half-foot strip of land and

had the legal right to build on it, the act of construction was

intentional and not an accident even though they acted under a

mistaken belief that they had the right to do so.” (Id. at p. 396.)1

1 In holding the subjective intent of the insured is irrelevant 

for purposes of determining whether the insured’s act was 

intentional, the Fire Exchange court explained the decision in 

State Farm Fire & Casualty Co. v. Superior Court (2008) 164 

Cal.App.4th 317 (Wright) “seems to stand in variance to this 

rule.” (Fire Exchange, supra, 181 Cal.App.4th at p. 393, fn. 1.) 

The Fire Exchange court explained: “[In Wright], the insured 

picked up a man and tried to throw him into a swimming pool. 

The man fell short of the pool and broke his clavicle. The 
7

Like the situations in Albert and Fire Exchange, the

complaint in the underlying action alleges harm from

Ghukasian’s intentional conduct. The leveling of land and cutting

of trees were not unexpected or unforeseen events. (See Merced

Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50 (Merced)

“[An accident . . . is never present when the insured performs a

deliberate act unless some additional, unexpected, independent,

and unforeseen happening occurs that produces damage.”]; see

also Delgado v. Interinsurance Exchange of Automobile Club of

Southern California (2009) 47 Cal.4th 302, 308 [“In the context of

liability insurance, an accident is “‘an unexpected, unforeseen,

undesigned happening or consequence from either a known or an

unknown cause.’” [Citation.]”].) To the contrary, it is undisputed

Ghukasian specifically instructed her contractor to level certain

land and cut trees, which is exactly what was done. Ghukaskian’s

mistaken belief about the boundaries of her property is irrelevant

to determining whether the conduct itself—leveling land and

cutting trees—was intentional. (See Albert, supra, 236

Cal.App.4th at p. 1291.)

2

appellate court concluded that the injury was caused by an 

accident, reasoning that the act directly responsible for the 

injury—throwing too softly so as to miss the water, was an 

unforeseen or undesigned happening or consequence and was 

thus fortuitous. The conclusion reached in this case can perhaps 

be harmonized, if at all, when it is viewed in the context of the 

examples given in [Merced Mutual Ins. Co. v. Mendez (1989) 213 

Cal.App.3d 41.] Like the speeding driver who intended to speed 

but not to hit another car, the insured intended to throw the 

other man but did not intend for him to hit the concrete.” (Fire 

Exchange, supra, 181 Cal.App.4th at p. 393, fn. 1.) As 

acknowledged by Ghukasian in her opening brief, “[t]he response 

by other appellate courts to the Wright decision was distinctly 

negative.”

2 We acknowledge Ghukasian’s argument—that her act of 

cutting trees and clearing land was accidental because she 
8

Ghukasian concedes Albert and Fire Exchange support the 

trial court’s ruling. She contends, however, that our Supreme 

Court overruled those cases in Liberty Surplus. We are 

unpersuaded.

In Liberty Surplus, the United States Court of Appeals for 

the Ninth Circuit certified the following question to the 

California Supreme Court: “When a third party sues an employer 

for the negligent hiring, retention, and supervision of an 

employee who intentionally injured that third party, does the suit 

allege an ‘occurrence’ under the employer’s commercial general 

liability policy?” (Liberty Surplus, supra, 5 Cal.5th at p. 216.) The 

court concluded it can, absent an applicable exclusion. (Ibid.) 

In summarizing the meaning of the term “accident” in a 

liability insurance policy, the Liberty Surplus court began by 

stating “‘[t]he term ‘accident’ is more comprehensive than the 

term ‘negligence’ and thus includes negligence.’ [Citation].”

(Liberty Surplus, supra, 5 Cal.5th at p. 221.) Because the causal 

sequence of events that led to the alleged injury began with the 

employer’s negligence in hiring the employee, the Liberty Surplus

court concluded the employer’s alleged negligent hiring

constituted an occurrence under the policy (i.e., an accident). (Id. 

at p. 225.) It explained the employee’s molestation of the third 

party “may be deemed an unexpected consequence of [the 

employer’s] independently tortious acts of negligence.” (Id. at p. 

unintentionally did so on her neighbor’s property—is plausible. 

But it is inconsistent with settled law. A similar argument was 

raised by Justice Miller’s dissenting opinion in Fire Exchange, 

but as discussed above, the majority rejected that argument. (See

Fire Exchange, supra, 181 Cal.App.4th at p. 402 (dis. opn. of 

Miller, J.) [“[T]he record provides support for the conclusion that 

the [insureds] did not have the objective to encroach on the 

[other] property, and therefore, the encroachment was an 

accident because the [insureds’] objective was to build on their 

own property, and that objective was allegedly not 

accomplished.”].)
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229.) By contrast, here Ghukasian’s intentional conduct (leveling 

land and cutting trees) was the immediate cause of the injury; 

there was no additional, independent act that produced the 

damage. Liberty Surplus is therefore distinguishable from the 

facts of this case. Moreover, Liberty Surplus contains no language 

indicating it intended to overrule prior caselaw holding 

intentional acts are not “accidents” merely because the insured 

did not intend to cause injury. To the contrary, it cited Merced’s 

definition of what constitutes an accident with approval, i.e., 

there is no accident when the insured performs a deliberate 

act “‘unless some additional, unexpected, independent, and 

unforeseen happening occurs that produces the damage.’”

(Liberty Surplus, supra, 5 Cal.5th at p. 225, quoting Merced, 

supra, 213 Cal.App.3d at p. 50 [emphasis added by Liberty 

Surplus court].)

We likewise reject Ghukasian’s contention that because the 

underlying action alleges a cause of action for negligence, the 

complaint alleges an “occurrence” under Liberty Surplus. “The 

scope of the duty [to defend] does not depend on the labels given

to the causes of action . . . ; instead it rests on whether the alleged 

facts or known extrinsic facts reveal a possibility that the claim 

may be covered by the policy.” (Cunningham v. Universal 

Underwriters (2002) 98 Cal.App.4th 1141, 1148.) It is undisputed 

that both the trespass and negligence causes of action alleged the 

same facts: Ghukasian and her contractor entered the neighbors’ 

property without consent and made deep cuts into the hill and 

removed timber, trees, and underwood from the property. There 

are no allegations or evidence that the neighbors’ property was 

damaged by an accident (e.g., by inadvertently dropping 

equipment on the neighbors’ property). Thus, although the 

underlying action alleges a cause of action for negligence, the 

factual allegations reflect intentional acts. 

Because the undisputed evidence demonstrates the acts for 

which the neighbors seek to impose liability on Ghukasian were 
10

not accidental, Ghukasian failed to carry her burden to show the 

neighbors’ claims may fall within the scope of the policy. 

(Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at 

p. 300.) As Ghukasian is not entitled to coverage (and therefore, 

her claims for breach of contract and declaratory relief fail as a 

matter of law), her bad faith claim also fails. (Love v. Fire Ins. 

Exchange (1990) 221 Cal.App.3d 1136, 1151 [“Where benefits are 

withheld for proper cause, there is no breach of the implied 

covenant [of good faith and fair dealing] [Citation].”]) 

Accordingly, the trial court did not err in granting Aegis’s motion 

for summary judgment.3

3 Because we conclude the underlying action does not allege 

an “occurrence” under the policy, we need not address whether 

any of the policy’s exclusions apply.
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DISPOSITION

The judgment is affirmed. Aegis is awarded its costs on 

appeal. 

CURREY, J. 

We concur: 

MANELLA, P.J. 

COLLINS, J.
Filed 5/5/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT

DIVISION FOUR

MARYAM GHUKASIAN,

 Plaintiff and Appellant,

v.

AEGIS SECURITY INSURANCE 

COMPANY,

Defendant and Respondent.

B311310

(Los Angeles County

Super. Ct. No. 

20STCV15761)

THE COURT:*

The opinion in the above-entitled matter, filed on April

14, 2022, was not certified for publication in the Official

Reports. For good cause it now appears that the opinion should

be certified for publication in its entirety in the Official Reports 

and it is so ordered.

There is no change in judgment.

 

* CURREY, J., MANELLA, P.J., COLLINS, J.