Filed 9/23/24 Castaneda v. The Int erinsurance Exchange of the Automobile Club CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MELANIE CELENE CASTANEDA

et al

.,

Plaintiffs and Appellants,

v.

THE INTERINSURANCE EXCHANGE

OF THE AUTOMOBILE CLUB,

Defendant and Respondent. D083070

(Super. Ct. No. CIVSB2132933)

APPEAL from a judgment of the Superior Court of San Bernardino

County , Winston Keh, Judge. Affirmed.

Shernoff Bidart Echeverria, Michael J. Bidart, Ricardo Echeverria,

Reid Ehrlich; Law Office of Fernando D. Vargas

, Fernando D. Vargas ; and

Jeffrey Ehrlich for Plaintiffs and Appellants.

Sheppard, Mullin, Richter & Hampton, Todd E. Lundell, John T.

Brooks, Thomas R. Proctor and Michael Bean for Defendant and Respondent.2 INTRODUCTION

Juvenal Hernandez and Melanie Celene Castaneda (together,

plaintiffs) sued The Interinsurance Exchange of the Automobile Club ( the

Exchange) for breach of Hernandez ’s homeowner’s policy and breach of the

implied covenant of good faith and fair dealing. They alleged the Exchange

wrongfully refused to provide Hernandez a defense or indemnification in a

personal injury action brought by Castaneda for injuries she sustained from a

pit bull attack

.

The trial court granted the Exchange’s motion for summary judgment,

finding coverage was precluded by the policy’s exclusion of claims of injury

arising out of “ the ownership of, custody of, or care for ” a pit bull. On appeal,

plaintiffs claim the court erred in entering summary judgment because the

exclusion is fatally ambiguous, and there was a potential for coverage of at

least one of Castaneda’s claims. We reject plaintiffs’ claims of error and

conclude summary judgment was properly granted.

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Cast a neda Action

A. The Homeowner’s Policy

The Exchange issued a homeowner ’ s policy to Hernandez providing

that “ ‘You’ or ‘your’ means any Named Insured in the declarations” and that

“ Insured

– means you and the following residents of your household ,”

including “ Your relatives by blood[.]” Hernandez was an insured under these

provisions because he was the named insured in the declarations.

Hernandez ’s sister, Dorian Hernandez, 1 lived in Hernandez ’s house as a

renter, so she also qualified as an insured.

1 To avoid confusion, we refer to Hernandez’s sister as Dorian.3

The policy provided personal liability coverage for “damages which any

insured is legally liable to pay because of . . . bodily injury or property

damage caused by an occurrence .” “ Occurrence ” was defined in relevant

part to mean “an accident . . . which, during the policy period, results in

bodily injury or property damage .” “ Bodily injury ,” in turn, simply

meant “bodily harm[.]” The policy further stated the Exchange would “defend

any suit claiming damages for bodily injury [ or] property damage . . . to

which this coverage applies. [The Exchange] will defend suit even if the

allegations are groundless, false or fraudulent.”

However, under exclusion “l” the policy excluded personal liability

coverage for “

Bodily injury or property damage arising out of the

ownership of

, custody of, or care for the following pure or mixed breed or pure

or mixed type of dogs: [¶] (1) Any pit bull type of dog[.]” We will refer to this

provision as the pit bull exclusion. 2

B. The Pit Bull Attack and Third

- Party Lawsuit

In November 2018, Dorian purchased a pit bull named “Bugzy.” In

May 2019, Dorian took Bugzy to a park that was about a half

- mile away from

Hernandez ’s house, where she allowed Bugzy to run off leash. As Castaneda

walked past the park, Bugzy attacked Castaneda, biting and clawing her.

Hernandez was driving his car on the freeway when the attack occurred.

In November 2019, Castaneda filed a complaint against Hernandez and

Dorian seeking damages for the bodily injuries inflicted on her during the

attack ( Cast a neda action) . She asserted causes of action for (1) negligence;

2 The policy’s definitions of “[ i ] nsured ,” “[ o ] ccurrence ,” and “[ b ] odily

[ i ] njury ” apply when those terms are “printed in bold italic type.” Because

t here are no relevant instances in which the policy used these terms without

the terms being printed in bold italic type

, in the remainder of this opinion,

we omit the original boldface and italics when quoting the policy.4

(2) common law strict liability based on known dangerous propensities;

(3) statutory strict liability based on the dog bite statute (Civ. Code, § 3342);

and (4) negligence of owners or possessors of residential real property.

In support of her first cause of action, Cast a neda alleged, among other

things, that Hernandez and Dorian “were the owners, keepers, and

harborers” of the dog that injured her. The allegations of the first cause of

action were incorporated in each of the remaining causes of action. In the

fourth cause of action, Castaneda alleged Hernandez and Dorian “were the

owners, lessors, and managers of the premises where the [d]og bit

[Castaneda]”; knew the dog was “vicious to people”; and had “control of the

premises and the [d]og” and their failure “to do so” was the proximate cause

of her injuries.

II.

Plaintiffs’ Coverage Action Against the Exchange

In December 2019, Hernandez notified the Exchange of the Castaneda

action. The Exchange conducted a coverage investigation during which it

determined Bugzy was a pit bull; Bugzy was owned by Hernandez ’s sister

Dorian, and Dorian lived with Hernandez ; and the attack occurred when

Dorian let Bugzy run unleashed in a local park. The Exchange then informed

Hernandez that because Castaneda’s injuries arose out of the ownership,

custody, or care of an excluded dog breed, the policy did not cover Castaneda’s

claims.

Castaneda’s counsel sent the Exchange two offers to settle the claims

against Hernandez and Dorian for the policy’s limit of liability ($500,000).

An attorney representing Hernandez demanded that the Exchange accept the

settlement offer and disputed its denial of coverage on the ground the

exclusion was ambiguous as applied to Hernandez because the attack did not5

arise from his ownership, custody, or care of the dog. In response, the

Exchange disagreed the exclusion was ambiguous, reiterated its denial of

coverage, and declined to pay the settlement demand.

In May 2021, Hernandez assigned Castaneda his rights against the

Exchange in return for her agreement not to enforce any judgment entered

against Hernandez or Dorian. On May 14, a default judgment against

Hernandez and Dorian was entered in the Castaneda action in the amount of

$7.5 million.

In November 2021

, Hernandez and Castaneda (in her capacity as

assignee) brought this action against the Exchange, asserting causes of action

for breach of contract and breach of the implied covenant of good faith and

fair dealing. Plaintiffs alleged the Exchange had a duty to defend and

indemnify Hernandez in the Castaneda action because the pit bull exclusion

reasonably could be interpreted to apply “ only if the insured owns, has

custody of, or control over the particular dog in question,” and Hernandez

“did not own, have custody of, or control the dog that injured Castaneda.”6 III.

The Exchange’s Summary Judgment Motion

The Exchange filed a motion for summary judgment on the ground

there was no potential for coverage and thus no duty to defend Hernandez

under the policy. It asserted that Hernandez ’s homeowner’s policy broadly

and unambiguously excluded liability coverage for bodily injuries “arising out

of the ownership of, custody of, or care for

. . . any pit bull type of dog.”

Because the injuries claimed by Castaneda were precisely the kind of injuries

excluded by the policy, there was no potential for coverage and no duty to

defend or indemnify Hernandez

.

Plaintiffs opposed the motion on the ground the exclusion was

ambiguous because it failed to specify whose ownership, custody, or care of an

injury

- causing pit bull would bring a claim within the exclusion. They

argued the exclusion could be interpreted to bar coverage only for “the named

insured’s ownership, custody or care” of a pit bull, an interpretation that

would result in coverage for Hernandez “because he neither owned nor had

custody of Bugzy, nor did he care for the dog.” Plaintiffs additionally argued

Castaneda’s fourth cause of action (for negligence of owners or possessors of

residential real property

— in essence, for premises liability) pled a potentially

covered claim against Hernandez based on his failure to “control the

premises.”

While the motion was pending, the Second Appellate Division decided

Dua v. Stillwater Ins. Co. (2023) 91 Cal.App.5th 127 ( Dua ). The trial court

allowed the parties to submit supplemental briefing on Dua

. It then issued a

minute order finding the pit bull ownership exclusion to be unambiguous and

applicable to Castaneda’s injuries, and concluding there was no potential for7

coverage of Castaneda’s claims against Hernandez . It granted the summary

judgment motion and entered judgment in favor of the Exchange.

DISCUSSION

Plaintiffs contend summary judgment was improperly granted because

(1) the policy exclusion pertaining to injuries arising out of ownership of,

custody of, or care for a pit bull is fatally ambiguous; (2) the allegations of the

fourth cause of action in Castaneda’s complaint asserted a potentially covered

claim against Hernandez ; and (3) Dua compels reversal of the summary

judgment. W e conclude plaintiffs’ arguments lack merit and summary

judgment was properly granted.

I.

Legal Principles

A. Standard of Review

“Summary judgment is appropriate if there are no triable issues of

material fact and the moving party is entitled to judgment as a matter of law.

We review the trial court’s decision de novo, considering all the evidence set

forth in the moving and opposing papers except that to which objections were

made and sustained. We liberally construe the evidence in support of the

party opposing summary judgment and resolve doubts concerning the

evidence in favor of that party.” ( Dua

, supra , 91 Cal.App.5th at p. 135

[cleaned up].) Where, as here, the material facts are undisputed, the

interpretation of an insurance policy presents a question of law. ( Haynes v.

Farmers Ins. Exchange (2004) 32 Cal.4th 1198, 1204 ( Haynes ).)

B. Duty to Defend

Plaintiffs contend that notwithstanding the pit bull exclusion in

Hernandez ’s homeowner’s policy, the Exchange had a duty to defend

Hernandez in the Castaneda action . “The duty to defend is contractual. A8

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

create a potential for indemnity.” ( Dua

, supra , 91 Cal.App.5th at p. 136

,

italics added [cleaned up] .) “ T o prevail, the insured must prove the existence

of a potential for coverage , while the insurer must establish the absence of any

such potential .” ( Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th

287, 300.)

“The determination whether the insurer owes a duty to defend usually

is made in the first instance by comparing the allegations of the complaint

with the terms of the policy. Facts extrinsic to the complaint also give rise to

a duty to defend when they reveal a possibility that the claim may be covered

by the policy. Conversely, where the extrinsic facts eliminate the potential

for coverage, the insurer may decline to defend even when the bare

allegations in the complaint suggest potential liability. This is because the

duty to defend, although broad, is not unlimited; it is measured by the nature

and kinds of risks covered by the policy. The duty to defend arises under the

facts alleged, and any doubts are resolved in favor of the insured.” ( Dua

,

supra

, 91 Cal.App.5th at pp. 136

– 137 [cleaned up] .)

C. Insurance Policy Interpretation

“While insurance contracts have special features, they are still

contracts to which the ordinary rules of contractual interpretation apply.”

( Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 ( Bank of the

West ).) “Thus, the mutual intention of the parties at the time the contract is

formed governs interpretation. If possible, we infer this intent solely from

the written provisions of the insurance policy.” ( Palmer v. Truck Ins.

Exchange (1999) 21 Cal.4th 1109, 1115 ( Palmer ) [cleaned up] .) The

provisions of an insurance policy “must be interpreted in context, giving effect9

to every part of the policy with ‘each clause helping to interpret the other.’ ”

( Dua

, supra

, 91 Cal.App.5th at p. 136.)

“If the policy language ‘ is clear and explicit, it governs. ’ ” ( Palmer

,

supra

, 21 Cal.4 th at p. 1115.) On the other hand, “ ‘[a] policy provision will

be considered ambiguous when it is capable of two or more constructions,

both of which are reasonable. ’ ” ( Foster

- Gardner, Inc. v. National Union Fire

Ins. Co. (1998) 18 Cal.4th 857, 868 ( Foster

- Gardner ) .) However, m ere

“disagreement concerning the meaning of a phrase, or the fact that a word or

phrase isolated from its context is susceptible of more than one meaning,”

does not make the word or phrase ambiguous. ( Ibid

. [cleaned up]. ) The

“ ‘language in a contract must be construed in the context of that instrument

as a whole, and in the circumstances of that case, and cannot be found to be

ambiguous in the abstract. ’ ” ( Bank of the West

, supra

, 2 Cal.4th at p. 1265,

italics omitted.)

“The insured has the initial burden of showing that a claim falls within

the scope of coverage, and a court will not indulge in a forced construction of

the policy’s insuring clause to bring a claim within the policy’s coverage.”

( Dua

, supra

, 91 Cal.App.5th at p. 136 [cleaned up] .) “But the burden is on

the insurer to show the claim falls within an exclusion to coverage, and

exclusions are narrowly construed.” ( Ibid. ) “ An insurer cannot escape its

basic duty to insure by means of an exclusionary clause that is unclear. As

we have declared time and again any exception to the performance of the

basic underlying obligation must be so stated as clearly to apprise the

insured of its effect. ” ( MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th

635, 648 ( MacKinnon ) [cleaned up] .) Thus, t o be enforceable, “any provision

that takes away or limits coverage reasonably expected by an insured must

be ‘ conspicuous, plain and clear. ’ ” ( Haynes

, supra

, 32 Cal.4th at p. 1204

. ) A10

limitation on coverage “must be stated precisely and understandably, in

words that are part of the working vocabulary of the average layperson,” and

the burden to make coverage exclusions “conspicuous, plain and clear rests

with the insurer.” ( Ibid. )

II

.

The Pit Bull Exclusion Is Not Fatally Ambiguous

T he parties do not dispute that Castaneda’s complaint is potentially

covered by the personal liability provision of Hernandez ’s homeowner’s policy.

But they dispute whether the pit bull exclusion is unambiguous (that is,

clear) and therefore effective in withdrawing coverage of Castaneda’s claims

against Hernandez despite the fact he did not personally own, have custody

of, or care for the pit bull that caused Castaneda’s injuries.

Plaintiffs contend the pit bull exclusion is “ fatally ambiguous ” because

it fails to specify whose ownership of, custody of, or care for the injury

causing pit bull will bring a claim within the scope of the exclusion. (Boldface

omitted.) They argue that without such specification, the exclusion can be

interpreted to mean ownership, custody, or care of a pit bull “ by the person

seeking coverage,” an interpretation that would result in coverage for

Hernandez

. They contend Essex Ins. Co. v. City of Bakersfield (2007) 154

Cal.App.4th 696 ( Essex ) supports their position.

T he Exchange, on the other hand, contends the exclusion is not limited

to the person seeking coverage and instead applies when anyone engages in

the excluded conduct. It argues that plaintiffs’ interpretation of the exclusion

as applying to “the person seeking coverage” is not reasonable because it is

contrary to the provision’s plain language when interpreted in the context of

the policy as a whole. It points to several cases in which courts have found

similarly worded exclusions to be unambiguous in pr ecluding coverage11

regardless of whether the particular insured seeking coverage was the person

who engaged in the conduct that triggered the exclusion. (See Castro v.

Allstate Ins. Co. (S.D. Cal. 1994) 855 F.Supp. 1152 ( Castro ) [applying

California law]; Zelda, Inc. v. Northland Ins. Co. (1997) 56 Cal.App.4th 1252

( Zelda ); Century Transit Systems, Inc. v. American Empire Surplus Lines Ins.

Co. (1996) 42 Cal.App.4th 121 ( Century Transit ); Farmers Ins. Exch. v.

Superior Court (2013) 220 Cal.App.4th 1199 ( Farmers ).)

For several reasons, we find the Exchange’s arguments to be persuasive

and conclude the exclusion is unambiguous in withdrawing coverage of

injuries arising out of the ownership of, custody of, or care for a pit bull,

whether or not the owner, custodian, or caregiver is the same person as the

person seeking coverage.

First, an essential difficulty with plaintiffs’ position is their failure to

establish that the interpretation of the exclusion that affords coverage to

Hernandez is reasonable. (See Mac Kinnon

, supra

, 31 Cal.4th at p. 655

[coverage must be afforded to the extent there is a “reasonable interpretation

under which recovery would be permitted”].) An insurance provision is

ambiguous only “ ‘when it is capable of two or more constructions, both of

which are reasonable. ’ ” ( Foster

- Gardner, supra, 18 Cal.4th at p. 868 .) “The

mere fact that a word or phrase in a policy may have multiple meanings does

not create an ambiguity.” ( Palmer, supra, 21 Cal.4th at p. 1118.) “To the

contrary, a word with a broad meaning or multiple meanings may be used for

that very reason

— its breadth

— to achieve a broad purpose.” ( Bay Cities

Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854,

868.) Further, we cannot determine ambiguity in the abstract but instead

must construe the policy as a whole. ( Palmer

, at p. 1118

. )12

Plaintiffs’ interpretation of the pit bull exclusion as limited to injuries

arising from ownership of a pit bull “by the person seeking coverage” finds no

support in the plain language of the exclusion itself, which broadly states the

policy does not cover “ [ b ] odily [ i ] njury or property damage arising out of the

ownership of, custody of, or care for

. . . [ a ] ny pit bull type of dog.” (Italics

added.) Nor does the policy as a whole reveal an intent to limit the pit bull

exclusion in the manner advocated by plaintiffs. The pit bull exclusion

appears in a list of 15 exclusions (exclusions “a” through “o”) consisting of

categories of bodily injury or property damage that the policy “do[es] not

cover.” Nine of the exclusions, including the one at issue here, apply to bodily

injury or property damage arising out of specified conduct (e.g., “the

ownership

. . . of motor vehicles, ” “the ownership

. . . of aircraft, ” war, “the

rendering or failing to render professional services, ” and “ sexual

misconduct ” ), without limitation. The remaining exclusions apply to bodily

injury or property damage arising out of specified conduct (e.g., intentional

acts, “the



### . . . sale

. . . of any drug, ” and “the transmission

. . . of any disease ” )

but only when committed by “any insured.” (Boldface and italics omitted.)

Neither the policy’s personal liability coverage provision, defense of suit

provision, nor any of its exclusions include the words “the person seeking

coverage” (or any of its variants, such as “the insured” or “the insured seeking

coverage”). Plaintiffs’ interpretation of the pit bull exclusion as impliedly

incorporating this phrase is therefore not grounded in or consistent with the

policy as a whole. To adopt plaintiffs’ interpretation, we would have to insert

the missing words into the exclusion despi te the lack of evidence this was

what the parties intended. To do so would violate the rule that courts, in

interpreting instruments, may not “insert what has been omitted.” (Code

Civ. Proc., § 1858; see California Traditions, Inc. v. Claremont Liability Ins.13

Co. (2011) 197 Cal.App.4th 410, 418 [“Courts may not rewrite the insurance

contract or force a conclusion to exact liability where none was

contemplated.” ( C leaned up

. )].)

Second, in the cases cited by the Exchange, multiple courts held

similarly worded exclusions to be unambiguously broad in withdrawing

coverage

, whether or not the insured seeking coverage was the person who

committed the excluded conduct. For example, i n Century Transit

, after a

cab driver beat two men with a flashlight, the victims sued the driver and his

employer, alleging claims for assault and battery as well as a claim against

the employer for negligent hiring, supervision and retention of the driver.

( Century Transit

, supra

, 42 Cal.App.4th at p. 124.) The employer’s general

liability policy contained an exclusion withdrawing coverage for “ ‘ any claim

. . . based on assault and battery [.]’ ” ( Id. at p. 126

. ) The appellate court

stated it could “find no ambiguity in this language.” ( Ibid. ) It reasoned the

language “places the focus not upon an insured’s conduct or intent, but rather

upon the type of event in which a plaintiff has sustained an injury” and

concluded the exclusion could therefore only be construed “one way: a suit

based on assault and battery is excluded no matter who commits it.” ( Ibid .;

see also Zelda, supra, 56 Cal.App.4th at p p. 1260, 1261 [concluding, in the

context of a lawsuit against a restaurant based on the restaurant employee’s

assault of a patron, that a policy endorsement withdrawing coverage for

bodily injury or property damage “ ‘ arising out of assault or battery ’ ” “by its

plain language, cover [ ed ] injury or damage arising when someone ( not

necessarily an insured ) commits an act of assault or battery

, ” ( italics added ) ] .)

Similarly, in Castro

, a mother and son were insured under a

homeowner’s policy. After the son shot and killed someone at a public

recreation center, the victim’s family sued the mother for negligent14

supervision. ( Castro

, supra

, 855 F. Supp. at p. 1152.) The insurer declined to

defend or indemnify the mother based in part on policy exclusions that

withdrew coverage for injury or damage resulting from “ ‘[a]n act or omission

intended or expected to cause bodily injury or property damage’ and from ‘[a]

criminal act or omission. ’ ” ( Id. at p. 1154, fn. 2.) The district court, applying

California law, rejected an argument these exclusions were “vague because

they fail[ed] to clarify whose criminal or intentional acts are excluded from

coverage.” ( Id. at p. 1154.) It reasoned: “[The insurer’s] wholesale exclusion

of coverage for injury or damage arising out of any criminal or intentional act

broadens rather than restricts the scope of the exclusion. In short, [the

insurer] explicitly excludes coverage for all criminal or intentional acts. It is

the very absence of any qualification which clarifies rather than obscures the

scope of the exclusion.” 3 ( Id. at pp. 1154

– 1155.)

3 In Castro , the plaintiff also argued the criminal act exclusion was

ambiguous for a second reason, namely that it “refer[red] to ‘the insured’ as

the person to whom ‘this exclusion applies.’ ” ( Castro

, supra , 855 F.Supp. at

p. 1155.) The district court rejected this argument based on a joint

obligations provision in the policy that stated, “The terms of this policy

impose joint obligations on persons defined as an insured person. This means

that the responsibilities, acts and failures to act of a person defined as an

Insured Person will be binding upon another person defined as an Insured

Person.” ( Id. at pp. 1153, 1155.) The court construed this provision as

expressly imposing “joint liability for the criminal acts of an insured; that is,

such conduct precludes coverage of any other insured under the policy.” ( Id.

at p. 1155.)

Here, Hernandez’s policy contains a virtually identical “JOINT

OBLIGATIONS OF INSURED” provision. Although the Exchange partially

relies on this provision in arguing the exclusion unambiguously withdrew

coverage of Hernandez, contending the joint obligations provision “imputes”

Dorian’s ownership of Bugzy to Hernandez, we find it unnecessary to

consider the merits of this position. Unlike the criminal act exclusion at

issue in Castro , the exclusion in this case does not refer to “ ‘the insured’ ” as

“the person to whom ‘this exclusion applies.’ ” (See Castro, supra, 85515

And in Farmers , a two

- year

- old girl was killed when she was

accidentally run over by her grandfather in the driveway of his home. The

child’s mother and sisters filed a wrongful death action, alleging the

grandfather was negligent in the operation of his pickup truck and the

grandmother was negligent in supervising the child on the premises.

( Farmers

, supra , 220 Cal.App.4th at p. 1202.) The grandparents were

insured under a homeowners policy that excluded from coverage injury

resulting from “ ‘the ownership, maintenance, use, loading or unloading of

. . .

motor vehicles. ’ ” ( Ibid .) The insurer sought a judicial declaration that it was

not obligated to provide coverage, in part on the ground the claims in the

underlying action arose from the grandfather’s use of a motor vehicle such

that the motor vehicle exclusion precluded any potential coverage. ( Id. at

p. 1203.) The trial court denied the insurer’s motion for summary

adjudication, finding the grandmother’s negligent supervision of the child

“ ‘exist[ed] independently of the “use” of a motor vehicle’ ” and concluding the

motor vehicle exclusion did not apply. ( Ibid. )

Finding error, t he Court of Appeal issued a writ of mandate directing

the trial court to grant the motion. ( Farmers

, supra

, 220 Cal.App.4th at

pp. 1203, 1214.) The Farmers court first examined, and rejected, the trial

court’s conclusion that the grandmother’s negligent supervision of the child

and the grandfather’s negligent vehicle use were independent concurrent

proximate causes of the child’s fatal injuries. ( Id. at pp. 1208

– 1212.) It found

“there was only one way, one place, and one time [the grand mother’s]

F.Supp. at p. 1155

. ) Instead, it broadly (and, as we conclude, unambiguously)

withdraws coverage regardless of the identity of the pit bull owner,

custodian, or caregiver. It is thus immaterial to the application of the

exclusion whether one insured’s ownership, custody, or care may be imputed

to another insured by virtue of the policy’s joint obligations provision.16

negligence could give rise to liability: when [the grandfather] arrived home

in his truck.” ( Id. at p. 1212.)

The Farmers court then considered the grandparents’ alternative

argument that the motor vehicle exclusion was ambiguous as to “ ‘whether

the “use” of a motor vehicle must relate to an insured or some other, ’ ” which

the court interpreted as an argument the exclusion applied “only when the

negligent supervision and the negligent use of the motor vehicle are by the

‘same insured. ’ ” ( Farmers

, supra

, 220 Cal.App.4th at p. 1213.) The court

held the exclusion was not ambiguous. It reasoned, in part, that “wh ere an

exclusion in an insurance policy ‘discloses no suggestion that it relates

exclusively to [specific types of] claims’ but ‘its language is broad and

unqualified,’ courts will not interpret it to apply only to those specific types of

claims.” ( Ibid.

, citing Total Call Internat., Inc. v. Peerless Ins. Co. (2010) 181

Cal.App.4th 161, 173 [holding nonconformity exclusion to be unambiguous,

barring competitor claims, where it “discloses no suggestion that it relates

exclusively to consumer claims” and “it s language is broad and unqualified”].)

The court found the motor vehicle exclusion “broad and unqualified” in that

“it does not apply only to injury resulting from a particular insured’s, or even

any insured’s, use of a motor vehicle.” ( Farmers

, at p. 1213.) It reasoned that

had the parties intended the exclusion “to apply only to injuries resulting

from an insured’s or a particular insured’s ‘ownership, maintenance, use,

loading or unloading’ of a motor vehicle, the policy would say so,” as it did in

the context of other exclusions. ( Ibid. ) Because “the policy distinguishes

between exclusions that apply to conduct by an insured and those that apply

to conduct by anyone, and the motor vehicle exclusion applies to motor

vehicle conduct by anyone,” application of the exclusion “does not require that17

the negligent supervision and the negligent use of the motor vehicle be by the

‘same insured. ’ ” ( Ibid. )

We agree with the Exchange these cases support the conclusion that

Hernandez ’ s policy is not ambiguous for failure to specify whose ownership of,

custody of, or care for a pit bull triggers the exclusion. Again, the exclusion

states the Exchange will not cover “[ b ] odily [ i ] njury or property damage

arising out of the ownership of, custody of, or care for

. . . [a]ny pit bull type of

dog[.]” (Italics added.) The focus of the pit bull exclusion is thus on the

claimed bodily injury and the manner in which it arose, and not on the

identity of the person who owned, had custody of, or cared for the pit bull in

question. Similar to the motor vehicle exclusion in Farmers , the exclusion

uses the phrase “ [ i ] njury

. . . arising out of the ownership” (italics added) of a

pit bull

, language that is “broad and unqualified” in that “it does not apply

only to injury resulting from a particular insured’s, or even any insured’s,

[ownership of a pit bull].” ( Farmers

, supra

, 220 Cal.App.4th at p. 1213.)

Contrary to the plaintiffs’ contention that the exclusion is ambiguous because

it does not specify whose ownership, custody of, or care for the injury

- causing

pit bull triggers the exclusion, a s the Castro court stated, “[i]t is the very

absence of any qualification which clarifies rather than obscures the scope of

the exclusion.” ( Castro

, supra

, 855 F.Supp. at p p. 1154

– 1155.)

Further, as in Farmers , the parties’ policy contains exclusions that

variously apply to injury arising from specified conduct when committed by

“any insured” and to injury arising from specified conduct without limitation

.

Thus, similar to Farmers , the policy “distinguishes between exclusions that

apply to conduct by an [y] insured and those that apply to conduct by anyone.”

(See Farmers

, supra , 220 Cal.App.4th at p. 1213

. ) The similarities between

the parties’ policy and the policy at issue in Farmers support us in reaching18

the same conclusion as in Farmers , namely, that “the [pit bull] exclusion

applies to [ownership, custody, or care of a pit bull] by anyone, insured or

noninsured.” (See ibid. ) Moreover, the exclusion is understandable and uses

“words that are part of the working vocabulary of the average layperson.”

( Haynes

, supra , 32 Cal.4th at p. 1204.) Accordingly, we conclude the pit bull

exclusion is not fatally ambiguous but instead is clear and therefore effective

in withdrawing coverage regardless of the identity of the person who engaged

in the conduct described in the exclusion

, and whether or not the person who

owned, had custody of, or cared for the pit bull that caused the claimed

injuries is the same person as the person seeking coverage. 4

Plaintiffs contend we should not rely on the cases cited by the

Exchange. They argue Century Transit and Zelda are inapposite because

they involved exclusions that focused on a type of event

— assault and

battery

— rather than ownership, custody, or care of a pit bull, which plaintiffs

argue is focused on “human conduct.” However, as the Exchange points out,

Century Transit and Zelda involved a person’s conduct, and the question at

hand was whether that person’s conduct precluded coverage for the insured

under the exclusion in question. Thus, despite the difference, Century

Transit and Zelda remain persuasive in their essential holding s

, which is

4 Plaintiffs assert the Exchange initially claimed in its summary

judgment motion that the pit bull exclusion withdrew coverage for anyone’s

ownership of, custody of, or care for a pit bull, while later claiming it only

applied to Hernandez or Dorian’s ownership, custody, or care of a pit bull,

thus demonstrating ambiguity in the exclusion. However, the Exchange

explains in response that it was not being inconsistent but was simply

responding to plaintiffs’ arguments. Regardless , as plaintiffs acknowledge,

the salient issue for purposes of their appeal is whether they have advanced a

reasonable interpretation of the exclusion. They have not, f or the reasons we

have already stated

.19

that an exclusion is not inherently ambiguous for failure to identify the

person whose commission of the excluded injury

- causing conduct withdraws

the claim from coverage.

Plaintiffs also assert the part of the Farmers opinion that addressed the

asserted ambiguity in the motor vehicle exclusion encompassed less than a

page. Although this may be so, we nevertheless find the court’s analysis to be

persuasive. 5 Further, we disagree with plaintiffs’ assertion the discussion in

Farmers of the ambiguity in the motor vehicle exclusion was immaterial to

the court’s conclusion. The court was addressing plaintiffs’ alternative

argument for reversal of the summary judgment

, such that its discussion

constituted an independent ground for affirmance. (See Bank of Italy Nat.

Trust & Sav. Assn. v. Bentley (1933) 217 Cal. 644, 650 [where two

independent reasons are given for a decision, “neither one is to be considered

mere dictum ”].)

Last

, to the extent plaintiffs rely on Essex

, supra

, 154 Cal.App.4th 696,

we do not find Essex to be instructive under the circumstances of this case.

Essex involved a commercial general liability (CGL) policy purchased by the

City of Bakersfield to cover occurrences during a special event held on private

property. ( Id. at p p. 699 , 701 .) The property’s driveway exited onto a state

route. ( Ibid. ) A vehicle accident occurred on the state route when the driver

of a tractor

- trailer applied his brakes to avoid a van that was traveling past

5 Plaintiffs also contend the Farmers court relied on a line of authority

the Essex court distinguished. They cite Farmers

, supra , 220 Cal.App.4 th at

page 1213 and Essex

, supra , 154 Cal.App.4 th at pages 708 to 709 for this

proposition. However, the cited pages of these decisions do not support

plaintiffs’ contention; the authorities distinguished in Essex are not among

those relied upon by the Farmers court.20

the driveway. ( Id. at pp. 699

– 700.) The tractor

- trailer jackknifed into

oncoming traffic and collided with the victim’s automobile. ( Ibid. )

The victim and her family filed a lawsuit in which they alleged, in part,

that the city had created a dangerous condition that contributed to the traffic

accident. ( Essex

, supra , 154 Cal.App.4th at p. 701.) The city tendered its

defense and indemnity to the CGL insurer, which denied coverage. Whereas

the main policy’s original auto exclusion withdrew coverage for “ bodily injury

or property damage arising out of the ownership, maintenance, use or

entrustment to others of any

. . . auto

. . . owned or operated by or rented or

loaned to any insured,” the exclusion had been modified by an endorsement

to withdraw coverage for “ bodily injury or property damage arising out of,

caused by or contributed to by the ownership, non

- ownership, maintenance,

use or entrustment to others of any auto.” ( Id. at p p. 701, 702 [cleaned up] .)

The policy also included a special events endorsement that withdrew

coverage for bodily injury arising out of “ ‘ automobiles. ’ ” ( Id. at p. 702 , italics

omitted.) In the ensuing coverage action, the insurer filed a summary

judgment motion in which it took the position it was not obligated to defend

or indemnify the c ity pursuant to the auto exclusions in the endorsements.

( Id. at pp. 702

– 703

. ) The trial court granted the motion.

The Essex court reversed, concluding the insurer’s interpretation of the

auto exclusions converted them into “unusual and unfair” limitations that

defeated the city’s reasonable expectation of coverage. ( Essex

, supra , 154

Cal.App.4th at p. 706.) Whereas the insurer “interprets these exclusions to

limit coverage in any cases involving automobiles by anyone anywhere,” the

court stated

, “no average layperson would have understood the auto

exclusions in that manner.” ( Id. at p. 707.) Whereas the original auto

exclusion was limited to automobiles “ ‘ owned or operated by or rented or21

loaned to any insured

, ’ ” in the court’s view the subsequent modifications

“d[id] not plainly and clearly provide that there would be no coverage for

cases involving autos that have no connection to the insured.” ( Ibid. , italics

added.) The court reasoned the modifications could reasonably be understood

to have essentially the same meaning as the original language. ( Ibid .)

Further, the auto exclusion in the special events endorsement was “so vague”

an average layperson would understand it as “repetitive of the auto exclusion

in the main insurance form with the possible inclusions of acts of spectators

on the insured premises.” ( Ibid. ) “Thus, an average layperson would

interpret the auto exclusions as applying to lawsuits involving the use of or

other acts relating to any ‘auto’ by any insured or on the insured premises.”

( Id. at pp. 707

– 708, italics added.)

Moreover, the Essex court noted, when read in context with the other

exclusions in the policy, it was reasonable to deduce that the auto exclusions

were meant to apply only to cases involving acts of the insured or its agents.

( Essex

, supra , 154 Cal.App.4th at p. 708.) Specifically, the court observed the

policy also excluded coverage for “acts done by employees in the course and

scope of employment,” and reasoned that the exclusion for injuries caused by

autos could therefore be interpreted “to exclude all such acts and omissions,

as well as certain occurrences by spectators and third parties taking place on

the premises of the events.” ( Ibid. , italics added.) However, the automobiles

involved in the underlying lawsuit “had no connection to any insured”; the

accident did not take place on the insured premises; and there was “not even

any evidence that the drivers or automobiles involved were going to or

leaving from the insured premises.” ( Ibid. ) Thus, the city was reasonable in

expecting that the insurer would defend it from the suit. ( Ibid. )22

We are not persuaded by plaintiffs’ reliance on Essex

. S everal of the

circumstances that motivated that court’s decision simply are not present

here. Unlike Essex , the exclusion at issue in this case was never modified. It

never included limiting language consistent with plaintiffs’ current coverage

position, and there is no subsequent endorsement that we can interpret as

consistent with the original limitation. Unlike Essex , the policy’s other

exclusions are not limited to situations involving only the insured or the

insured’s agents. Instead, as we have mentioned, most of the exclusions lack

any such limitation. Unlike Essex , it is not the case that the pit bull that

caused Castaneda’s bodily injuries has “no connection to any insured .”

( Essex

, supra , 154 Cal.App.4th at p. 708, italics added.) Just the opposite.

Bugzy was owned by Dorian, who was Hernandez ’s sister and tenant as well

as an insured under the policy. For these reasons, we do not find the

reasoning of Essex to be applicable, nor does it persuade us the pit bull

exclusion is ambiguous in the context of the policy as a whole or the

circumstances of this case. 6

6 Plaintiffs characterize Essex as holding “there was no relevant

connection between the c ity and the automobiles involved in the crash that

would trigger the Auto Exclusion.” This is inaccurate: Essex did not use the

phrase “relevant connection”; rather, it repeatedly found “no connection”

between the vehicles involved in the accident and the c ity or “any insured.”

( Essex

, supra , 154 Cal.App.4 th at pp. 707, 708, 710.) We therefore decline to

read the phrase “relevant connection” into the Essex decision.

Plaintiffs further contend that Penn

- Star Insurance Company v.

Zenith Insurance Company (9th Cir., Dec. 28, 2022, No. 21

- 16930) 2022

WL 17974449 , in which the Ninth Circuit distinguished Essex on the basis

that the auto exclusion before it (which specifically applied to the use of

“ ‘any’ auto ‘ by any person’ ”) contained different language than the auto

exclusion in Essex , confirms the applicability of Essex to this case. We

disagree . T he fact that another court distinguished Essex on the basis of a

third, dissimilar exclusion does not demonstrate that the exclusion before us

falls within the holding of Essex

.23

And while Hernandez contends he “would not expect” the exclusion to

withdraw coverage for the claims against him since he did not personally

own, have custody of, or care for Bugzy, for the reasons we have explained,

this subjective expectation does not comport with the explicit terms of the

policy. The exclusion states the Exchange does not cover bodily injuries

arising out of “ the ownership of, custody of, or care for” a pit bull, not “ your

ownership,” or ownership by “the insured” or “the person seeking coverage.”

(Italics added.) Because the policy’s language is clear and unequivocal in

excluding coverage of injuries arising out of the ownership, custody, or care of

a pit bull, and Castaneda’s injuries undisputedly arose out of Dorian’s

ownership, custody, or care of a pit bull, Hernandez could not reasonably

expect coverage. (See TIG Ins. Co. of Michigan v. Homestore, Inc. (2006) 137

Cal.App. 4 th 749, 755 [ “ ‘ [W]here the policy is clear and unequivocal, the only

thing the insured may “ reasonably expect ” is the coverage afforded by the

plain language of the mutually agreed

- upon terms. ’ ”].)

Further, to the extent plaintiffs argue Castaneda’s claims against

Hernandez were “groundless,” they do not identify a basis for potential

coverage

. True, the policy states the Exchange will defend suits “claiming

damages for bodily injury

. . . to which this coverage applies ” and that it will

do so “ even if the allegations are groundless, false or fraudulent.” (Italics

added.) However, the “duty to defend groundless actions applies only to

claims covered by the policy.” ( Venoco, Inc. v. Gulf Underwriters Ins. Co.

(2009) 175 Cal.App.4th 750, 765.) “In other words, this clause does not

require the insurer to defend a noncovered claim merely because it is

groundless.” (Croskey, et al., Cal. Practice Guide: Insurance Litigation (The

Rutter Group, 2023) ¶ 7:523.3, p. 1 3

, citing North American Building Maint.,

Inc. v. Fireman’s Fund Ins. Co. (2006) 137 Cal.App.4th 627, 639

– 640 [“ While24

an insurer must defend any claim that would be covered if true, even though

the claim is in fact false

. . . , an insurer has no duty to defend a noncovered

claim even if the claim is false .” (Citations omitted.) ] .) Castaneda’s complaint

alleged that both Hernandez and Dorian “were the owners, keepers, and

harborers” of the dog that injured her. That the allegations against

Hernandez may have been groundless is not sufficient to create a potential

for coverage, because the allegations would not “be covered if true ” since they

fell within the pit bull exclusion. ( North American Building Maint. , at

pp. 639

– 640.)

III.

There Is No Potential f or Coverage of Castaneda’s Fourth Cause o f Action

Against Hernandez

Plaintiffs contend Castaneda’s fourth cause of action for negligence of

owners or possessors of residential real property asserts a potentially covered

claim against Hernandez based on his negligent control of “his premises.”

(Boldface omitted.) For two reasons, we disagree.

First, plaintiffs’ contention is based on an untenable reading of the

complaint. In support of the fourth cause of action, Castaneda alleged

“ [Hernandez and Dorian] and each of them were the owners, lessors, and

managers of the premises where the [d]og bit plaintiff” and “ [Hernandez and

Dorian] and each of them possessed the right, authority, means and

opportunity to control the premises and the [ d ] og , and thereby to have

prevented the [d]og from inflicting bodily injuries on plaintiff[.]” (Italics

added.) Citing Universal Sales Corp. v. California Press Mfg. Co. (1942) 20

Cal.2d 751, 775

– 776, plaintiffs assert the terms “and” and “or” may be

construed interchangeably, and that the italicized allegation may therefore

be interpreted in the disjunctive as seeking to impose liability on Hernandez25

based solely on his control of “the premises,” and on Dorian based solely on

her control of “the [d]og.” However, Universal Sales , a case interpreting a

contract that allocated patent rights over food pellet machines, simply does

not stand for the proposition that the words “and” and “or” in a pleading are

interchangeable. (See id. at pp. 775

– 776 [rejecting claim of error based on

trial court’s declaration of an interest in patents on “machines and

improvements” on the ground “ ‘it was within the province of the trial court to

construe the contract from a reading of the whole thereof’ ”].)

Second, even if the fourth cause of action could be interpreted as

seeking to impose liability on Hernandez based solely on his control of “the

premises,” the Exchange still would have no duty to defend him against this

claim. This conclusion is compelled by o ur determination that the policy

exclusion unambiguously withdraws coverage of bodily injuries arising out of

the ownership of, custody of, or care for a pit bull, regardless of whether

Hernandez or Dorian was the owner, custodian, or caregiver. This is because

any premises liability of Hernandez would not be a cause of Castaneda’s

injuries that existed independent of the ownership of Bugzy.

State Farm Mut. Auto Ins. Co. v. Partridge (1973) 10 Cal.3d 94 provides

the standard that governs this issue. In Partridge , the defendant filed down

the trigger mechanism of his gun so it would have a “ ‘hair trigger action. ’ ”

( Id. at p. 97.) While driving off road in his four

- wheel drive vehicle, he hit a

bump, and the pistol discharged and hit one of the vehicle’s passengers. ( Id.

at p. 98.) The defendant was insured under automobile and homeowners

policies; the homeowners policy excluded coverage for bodily injury “ ‘arising

out of the

. . . use of

. . . any motor vehicle.’ ” ( Id . at p. 99.) The insurer

conceded that if the gun had accidentally fired while the insured was walking

down the street or running through the woo ds, the resulting injuries would26

be covered by the policy. ( Id. at p. 10 3 .) It argued, however, there was no

coverage because the injuries arose out of the use of a motor vehicle. ( I bi d. )

Our high court disagreed and held the defendant’s use of the vehicle was

“only one of two joint causes of the accident” ( id. at p. 102), the other being

the defendant’s modification of the gun ( id. at p. 103). The Court stated,

“ [I] nasmuch as the liability of the insured arises from his non

- auto

- related

conduct, and exists independently of any ‘use’ of his car, we believe the

homeowner’s policy covers that liability.” ( Ibid. )

Here, unlike the scenario in Partridge , even if Castaneda’s complaint

could be interpreted to assert a claim against Hernandez based only on his

failure to “control the premises,” Hernandez ’s liability under this claim would

not exist independently of “the ownership of, custody of, or care for” Bugzy.

Plaintiffs posit that Hernandez could have been held liable for failing to

instruct Dorian not to walk her dog off

- leash, or for neglecting to maintain a

working fence or gate “to prevent Bugzy from escaping from the premises.”

But these illustrations prove our point: none of these theories of liability can

be divorced from Dorian’s ownership, custody, or care of Bugzy.

The decisions of other appellate courts are instructive. For example, in

Safeco Ins. Co. v. Gilstrap (1983) 141 Cal.App.3d 524, 530 ( Safeco ), the Court

of Appeal applied Partridge to a case arising from insured parents’ negligent

entrustment of a motorcycle to their 14

- year

- old son, who collided with

another motorcycle and injured a third party. ( Id. at p p. 526 , 527 .) The

insure r argued a motor vehicle exclusion withdrew coverage, and the

appellate court agreed. It reasoned “the injury here involved no

instrumentality other than the vehicle itself and

. . . there would have been

no accident without the use or operation of the motorcycle[.]” ( Id. at pp. 530

–

531.) “In short, when the events giving rise to the insured’s liability are27

solely and indivisibly related to the use of an excluded instrumentality,

coverage is precluded.” ( Id. at p

. 530.)

And in Farmers

, supra , 220 Cal.App.4th at pages 1204 through 1212,

the underlying claim arose from the accident in which the grandfather ran

over his granddaughter with his pickup truck. There, the appellate court

considered whether the grandfather’s negligent operation of his truck and the

grandmother’s negligent supervision of the child were dependent or

independent concurrent causes of the child’s fatal injuries. ( Id. at p. 1208.) It

determined the causes were not independent, and that the homeowner’s

policy exclusion for injuries arising from use of a motor vehicle therefore

applied. It explained that in cases in which exclusions have been held to bar

coverage, the excluded instrumentality “played an active role in causing the

injury,” and the injury “ ‘involved no instrumentality other than the vehicle

itself,’ and ‘there would have been no accident without the use or operation

of’ ’ the vehicle.” ( Id. at p. 1209, quoting Safeco, supra, 141 Cal.App.3d at

p. 530.) The court found the grandmother’s “negligent supervision was not

‘separate and independent’ of [the grandfather’s] negligent automobile use

because there was only one way, one place, and one time [the grandmother’s]

negligence could give rise to liability: when [the grandfather] arrived home

in his truck.” ( Farmers, at p. 1212.)

Similarly, here, under the theories of premises liability posited by

plaintiffs, it remains the case the excluded instrumentality, Bugzy, “played

an active role in causing” Castaneda’s injuries, and her injuries “ ‘involved no

instrumentality other than [the pit bull] itself. ’ ” ( Farmers

, supra , 220

Cal.App.4th at p. 1209; see Safeco

, supra , 141 Cal.App.3d at p p. 530

– 531 .)

Much as in Farmers , it is not possible to construct a theory of liability under

which Hernandez ’s alleged negligent control of his pr emises could have28

caused Castaneda’s injuries “ ‘separate and independent’ ” of Dorian’s

ownership, custody, or care of Bugzy. ( Farmers , at p. 1212.) Instead, as in

Farmers , there was only one way, one place, and one time Hernandez ’s

negligence could give rise to liability: when Dorian allowed Bugzy to run off

leash in the park. (See i bid .) Consequently , Castaneda’s fourth cause of

action did not give rise to potential coverage based on Hernandez ’s failure to

“control” his premises.

IV.

Dua Does Not Compel Reversal of the Judgment

Finally, plaintiffs contend that Dua

, supra , 91 Cal.App.5th 127 compels

reversal of the judgment. We disagree.

Dua involved a third

- party lawsuit that arose from a pit bull attack,

but it involved an animal exclusion that differed from the exclusion at issue

here. Dua was the named insured under a homeowner’s policy with an

animal liability exclusion that withdrew coverage for “ ‘ damages caused by

any animal, at any time, at any premises insured hereunder, or caused by,

arising out of, or in any way related to any animal owned by or in the care,

custody, or control of the insured, or any member of the insured’s family or

household

. ’ ” ( Dua

, supra , 91 Cal.App.5th at p. 132, italics added.) In the

third

- party lawsuit, a husband and wife sued Dua and her boyfriend for

personal injuries and property damage allegedly caused when the boyfriend ’s

pit bulls attacked the husband and wife’s dogs on a public street. ( Id. at

p. 133.) As to Dua, the complaint alleged she was liable because she “had a

‘duty of care’ to take measures to prevent the attack and did not do so.”

( Ibid. )

When Dua tendered her defense to the insurer, she told the insurer

that “her boyfriend, Taylor, had been walking his dogs when they attacked29

the [husband and wife’s] dogs, and that Taylor was the owner of the dogs.”

( Dua

, supra , 91 Cal.App.5th at pp. 133

– 134.) The insure r denied coverage

without conducting a further investigation. ( Id. at p. 134.) Dua settled the

lawsuit and sued the insurer for breach of contract and bad faith. She

asserted that if the insurer had investigated, it would have discovered

“(1) she was not married to Taylor; (2) Taylor did not live with her nor was he

staying with her at the time of the dog attack; (3) the attack did not occur on

her premises; and (4) at the time of the dog attack, the dogs were leashed and

under the care, custody, and control of Taylor.” ( Ibid. ) The trial court

granted summary judgment for the insurer, concluding there was “ ‘no

possibility that [Dua] could be found liable on facts that would have required

[the insurer] to indemnify her. ’ ” ( Id. at p. 135.)

The Court of Appeal reversed. It reasoned the insurer “ignored the

facts provided by Dua suggesting that the policy’s animal exclusions did not

apply because she did not own the dogs, nor were they in her care, custody or

control.” ( Dua

, supra , 91 Cal.App.5th at p. 137.) While the insurer argued

that if Dua lacked ownership, custody, or control of the dogs, then there was

no possibility she could be held liable under the complaint, the court

disagreed this was a valid basis for denying her a defense. The court

explained the husband and wife’s claims, “when evaluated in light of the facts

presented by Dua to [the insurer] when she tendered the claim, may have

been frivolous and unmeritorious, but did not come within the animal

liability exclusion . They thus created at least a possibility of coverage and

the duty to defend.” ( Id. at p. 138, italics added.)

Justice Ashmann

- Gerst authored a concurring opinion in Dua in which

she agreed the trial court erred in granting summary judgment, although for

a different reason. In her view, the insurer owed a duty to defend because30

there was “ the possibility that a court could have found Dua liable to the

[husband and wife] under a novel theory premised upon Dua’s alleged duty to

take steps to prevent foreseeable injury and damage, such as by instructing

her invited guests not to bring vicious animals to her home because it was

reasonably foreseeable that the guests would walk the animals and that the

animals would attack.” ( Dua

, supra , 91 Cal.App.5th at p. 143 (conc. opn. of

Ashmann

- Gerst, J.) .) “[S]uch a claim would not implicate the animal liability

exclusion,” she explained, “because it does not arise out of Dua’s ownership,

custody, control, or care of Taylor’s dogs” and instead “would arise out of

Dua’s alleged ability to somehow control her invited guests.” ( Id. at p. 143,

fn. 3.)

Plaintiffs rely on Dua in three respects. First, they assert Dua cannot

be distinguished from this case, and suggest it therefore supports reversal of

the judgment. This is clearly incorrect. Both the operative exclusion and the

facts of Dua differ materially from those of the present case. In Dua , the

exclusion applied to any animal “ ‘ owned by or in the care, custody, or control

of the insured, or any member of the insured’s family or household

. ’ ” ( Dua

,

supra , 91 Cal.App.5th at p. 132 , italics added .) It was for this reason the

husband and wife’s claims fell outside the exclusion: the animals that caused

their claimed damages were not owned by or in the care, custody, or control of

Dua or any member of her family or household . This is unlike the exclusion

in this case, which applied to injuries arising out of “ the ownership of, custody

of, or care for” a pit bull, without limitation, making Dorian’s ownership,

custody, or care of Bugzy sufficient to bring Castaneda’s complaint for

personal injuries within the exclusion. (Italics added.)

Second, plaintiffs contend the exclusion in Dua was clearer than the

one in this case, thus demonstrating ambiguity in Hernandez’s policy . We31

are not persuaded. As we have discussed, numerous courts have found

contractual language similar to the text of the exclusion in this case to be

unambiguous. Further, plaintiffs cite no case in which a court has found an

exclusion to be fatally ambiguous on the basis a different exclusion from a

different insurance policy was clearer . Indeed, a leading treatise states, “Just

because language could be more precise or explicit does not mean it is

ambiguous.” (Croskey, et al., Cal. Practice Guide: Insurance Litigation (The

Rutter Group, 2023) ¶ 4:240, p. 4 8 , citing Government Employees Ins. Co. v.

Superior Court (2000) 79 Cal.App.4th 95, 103 [“Perfection in drafting is not

required, and probably not even possible.”].) The purpose of contractual

language is to express the mutual intent of the parties (see Bank of the West

,

supra , 2 Cal.4th at p. 1264), and the parties in Dua evidently bargained for

an exclusion that was simultaneously broader (because it encompassed

“control” as well as ownership, custody or care of an animal, as opposed to a

pit bull) and more limited (because it pertained only to the insured and the

members of the insured’s family or household) than the one at issue here. We

decline to find the exclusion in this case ambiguous simply because its text

differs from the one at issue in Dua

.

Third, plaintiffs contend Dua supports the conclusion Castaneda’s

fourth cause of action for premises liability gave rise to potential coverage of

Hernandez

. T hey point to Justice Ashmann

- Gerst’s finding of a potential for

coverage of Dua based on the theory she owed a duty to “control her invited

guests.” (See Dua

, supra , 91 Cal.App.5th at p. 143, fn. 3 (conc. opn. of

Ashmann

- Gerst, J.) .) They suggest that similar to the way this theory

created a potential for coverage of Dua, Castaneda’s fourth cause of action

created a potential for coverage of Hernandez

.32

We disagree. The theory of liability posited by Justice Ashmann

- Gerst

offered a potential for coverage in Dua because the exclusion in that case was

limited (in relevant part) to animals “owned by . . . the insured ,” and the

theory did not arise from the insured’s

— Dua’s

— ownership of the dogs. (See

Dua

, supra , 91 Cal.App.5th at p. 133 , italics added; id. at p. 143, fn. 3 (conc.

opn. by Ashmann

- Gerst, J.) .) Here, the exclusion is not so limited; it

encompasses injuries arising out of “ the ownership of, custody of, or care for”

a pit bull, such that there was no potential for coverage of Castaneda’s fourth

cause of action regardless of whether her injuries arose out of Dorian’s or

Hernandez ’s ownership of, custody of, or care for Bugzy. (Italics added.)

Moreover, as we have explained, any asserted negligence by Hernandez in his

control of the premises was not a cause of Castaneda’s injuries that existed

independently of Dorian’s ownership, custody, or care of Bugzy.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on

appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

DO, J.

WE CONCUR:

McCONNELL, P. J.

KELETY, J.