F iled 4/14/22 ; Certified fo r Publication 5/5/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

M ARYAM GHUKASIAN,

P laintiff and Appellant

,

v.

AEGIS SECURITY INSURANCE

COMPANY

,

Defendant and Respondent

. B 311310

( 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 again st 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 accide nt 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 hold ing 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

, Vre j 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’ proper ty] 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 exclusion s 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 Ghukasi an’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 i n the underlying action as a matter of law

and therefore, it did not breach the insurance con tract . Aegis

contended there was no coverage for the underlying action

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

coverage, and i t was excluded by various policy exclusions. The

trial court agreed, explaining: Ghukasian’s “ mistaken belief as to4

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 under lying 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 the5

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 o n 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 Al bert, supra, 236 Ca l.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 di rectly on point. There, the plaintiff’s neighbor

sued plaintiff for damage caused to h is 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 judgme nt, holding the neighbor’s claims

against plaintiff “arise from nonaccidental conduct, outside the

terms of the policy” (the policy defined an “occurrence” as an6

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

irrelevant that plaintiff did no t 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 be en 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 reason ed: “ 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 3 17 ( Wright ) “seems to stand in variance to this

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

The Fir e 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. The7 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 w ere not unexpected or unforeseen event s

. ( See Merced

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

“[An accident

. . . is never present when the insured p er forms 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

Sou ther n 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 undispute d

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

i njury

— 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, su

pra , 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 she8 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 State s Court of Appeals for

the Ninth Circuit certified the followin g 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 comme rcial general

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

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

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

liability insurance policy, t he Liberty Surplus c ourt began by

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

term ‘negligence’ and thus includes negligence.’ [ C itation].”

( Liberty Surp lus, supra

, 5 Cal.5th at p. 221.) Because the ca us al

sequence of events that led to the alleged injury b egan with the

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

c ourt concluded the employer’s alleged negligen t hiring

constitute d an occurrence under the policy ( i.e.

, a n 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 th e 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

acco mplished.”] .)9

229.) By contra s t, here Ghukasian’s intentional conduct (leveling

land and cutting trees) was the immediate c ause 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 [emphasi s 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 give n

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 (200 2) 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 cau se 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 were10

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 jud gment. 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.11 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 TH E C O U RT OF AP P E A L OF TH E S T AT E OF C A LI F O R N I A

SE C O N D AP P E LLA TE DI S TR I CT

D I VIS I O N F O UR

MARYAM GHUKASIAN,

Plaintiff and Appellant,

v.

AEGIS SECURITY INSURANCE

COMPANY,

Defendant and Respondent. B311310

(Los Angeles County

Super. Ct. No.

20STCV15761)

T HE COURT:*

T h e o p in i o n i n t he a b o v e

- e n t i t l e d m a tt e r

, f i led o n April

14

, 2 0 2 2

, was n ot cer t if i ed f or p ub li c a ti on in t h e O f fi c i a l

R e p or t s. For g o o d c a u s e it n o w a p p ea r s t hat the o p i n io n sh o u ld

be cer t if i ed f or pu b l ic a ti on in i t s e n t ir e ty i n th e Of f ic i al R e p o r ts

a n d i t i s s o o r de r e d

.

T h ere i s n o c h a n g e i n judgm e nt.

* C U RR E Y

, J., M A N ELL A, P. J., COLLINS

, J.