1

Filed 7/21/16 Portugal v. Western World Ins. Co. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

SYLVIA PORTUGAL,

Plaintiff and Respondent,

v.

WESTERN WORLD INSURANCE COMPANY,

Defendant and Appellant.

C067875

(Super. Ct. 

No. 34200900034576CUBTGD)

In this case, a judgment creditor seeks to collect on an underlying judgment from 

the insurer of the judgment debtor who defaulted in the underlying action for unpaid 

wages and employment benefits. The judgment creditor action was filed under 

subdivision (b)(2) of Insurance Code section 11580,1 which authorizes a direct lawsuit by 

a judgment creditor against the insurer of the judgment debtor under certain 

circumstances.

 

1 Further undesignated statutory references are to the Insurance Code.
2

Plaintiff Sylvia Portugal, as representative of a class of former employees, filed 

the underlying action against her former employer, Carequest, Inc. dba Real Care, an inhome provider of household services for elderly and disabled persons. Real Care had 

commercial general liability (CGL) and professional liability insurance through Western 

World Insurance Company (Western). The underlying action was for unpaid wages, 

overtime, and penalties. Western declined to defend or indemnify Real Care in the 

underlying lawsuit, contending that plaintiffs did not have standing under section 11580, 

subdivision (b)(2), since their lawsuit was not an action based upon bodily injury, death, 

or property damage and the insurance policies did not cover the employees’ claims. Real 

Care defaulted in the underlying action, and it is not a party to this appeal.

In this action by Portugal against Western, the trial court granted summary 

judgment to Western. The court ruled that Portugal and her class lacked standing under 

section 11580, because the underlying claims were for wages and employment benefits, 

which were intangible economic interests, not bodily injury, death, or property damage. 

The trial court also found that the underlying claims were not covered occurrences under 

the insurance policies or were expressly excluded.

Portugal appeals from the judgment in favor of Western, arguing triable issues 

preclude summary judgment.

We affirm.

2

 

2

In addition to the judgment creditor claim against Western, Portugal’s complaint 

asserts claims against others, alleging that Real Care fraudulently conveyed its assets to 

alter egos. Our affirmance of summary judgment in favor of Western does not affect the 

remaining counts. (Cuevas v. Truline Corp. (2004) 118 Cal.App.4th 56, 61; Millsap v. 

Federal Express Corp. (1991) 227 Cal.App.3d 425, 430 [where summary judgment 

disposes of all issues involving one of multiple defendants, a separate appealable 

judgment can be entered as to that defendant].)

 On August 11, 2010, while the trial court was considering Western’s summary 

judgment motion, Portugal filed another state court action against Western, alleging she 
3

FACTUAL AND PROCEDURAL BACKGROUND

The operative pleading in the underlying lawsuit was a first amended complaint 

for damages and equitable relief filed by Portugal against Carequest Inc., dba Real Care, 

for: (1) failure to pay overtime and other wage compensation in violation of California 

labor laws; (2) violation of Business and Professions Code section 17200 et seq. (unfair 

business practices); and (3) a demand for an accounting. The trial court certified the suit 

as a class action.

The complaint against Real Care alleged that Real Care, an in-home service 

provider of household services and assistance for the elderly and invalid, employed 

Portugal and the class as “ ‘Caregivers,’ ” the job duties of which “included housework, 

errands, shopping, and meal preparation and other . . . job tasks [not exempt from wage 

laws].” The complaint further alleged that Real Care improperly classified plaintiff and 

the class as “ ‘personal attendants’ ” exempt from overtime wages and “[f]ailed to pay 

overtime, provide meal and rest breaks and failed to pay all hourly wages due to nonexempt employees . . . .”

Portugal’s complaint against Real Care sought “payment, on behalf of herself and 

all other similarly situated individuals, for overtime wages owed, unprovided meal and 

rest breaks, a full accounting and payment for all other minimum and/or legally required 

wages owed, plus all penalties, benefits, and interest, based on sums that were withheld, 

unaccounted for, and/or not paid by DEFENDANTS. PLAINTIFF also seeks, on behalf 

of herself and all other similarly situated, attorneys fees and costs and any and all other 

 

and the class were suing as assignees of Real Care through a written assignment from 

Real Care, but Western removed that case to federal court on the basis of diversity 

jurisdiction. (Portugal v. Western World Ins. (E.D.Cal. Aug. 22, 2012, No. 2:10-cv02498-MCE-JFM) 2012 U.S. Dist. Lexis 119172.) On August 22, 2012, the federal court 

stayed the federal court action pending resolution of this appeal. (Ibid.) In the case 

before us, although Portugal’s opposition papers to summary judgment argued a direct 

right of action as assignee, Portugal’s counsel told the trial court at the summary 

judgment hearing that this case is not predicated on assignment of rights.
4

amounts as provided by statute.” The pleading also sought an injunction prohibiting Real 

Care from requiring its Caregivers to work without meal/rest breaks or to work overtime 

without overtime pay.

The pleading further alleged: “PLAINTIFF has suffered actual financial losses 

and damage to her property rights and has standing to, and does, seek restitution and 

disgorgement of all sums wrongfully obtained by DEFENDANTS in violation of the 

Business & Professions Code section[] 17200 et seq., to prevent the DEFENDANTS 

from benefitting from its violation of law and/or unfair acts. PLAINTIFF is also entitled 

to costs, attorney’s fees, interest and penalties as provided for by the California Labor 

Code and Business & Professions Code, and the Private Attorney General’s Act, 

California Civil Procedure Code section 1021.5.”

The class action allegations stated, “Contrary to DEFENDANTS’ characterization 

of this job as ‘exempt’ in order to avoid paying overtime, PLAINTIFF and other 

Caregivers were required to perform daily tasks that fall outside any possible exemption 

claim under California law. The majority of the job duties required by Caregivers 

include: cooking, cleaning, running errands, and doing laundry, none of which falls under 

the ‘personal attendant’ exemption of Wage Order 15-2001 and/or any other 

exemption. . . .” In performing their job duties, the class members “were routinely 

required to work in excess of 8 hours per day and/or 40 hours per week” without 

overtime pay, were not provided with a fair accounting of all hours worked, and were 

“deprived of meal breaks and rest breaks in violation of California law.”

The first count in the underlying pleading against Real Care was for “FAILURE 

TO PAY OVERTIME AND WAGES IN VIOLATION OF CALIFORNIA LABOR 

CODE AND APPLICABLE WAGE ORDERS AGAINST ALL DEFENDANTS.”

The second count was for “UNFAIR BUSINESS PRACTICES” (Bus. & Prof. 

Code, § 17200 et seq.), which alleged Portugal and the class “ha[d] not been paid all 

wages and benefits due to [them] through [their] employment” and “ha[d] suffered 
5

property damage and/or financial loss in the form of unpaid overtime and other wages 

and benefits.” Portugal and the class “have suffered injury . . . by way of lost wages and 

tangible property benefits as a result of the unfair competition alleged herein.”

A third count in the underlying lawsuit sought an “ACCOUNTING” to determine 

the amount of overtime wages and other compensation owed.

Real Care tendered defense of the lawsuit to Western, but Western responded with 

a letter declining to provide coverage or defense, asserting that the CGL insurance 

policies did not provide coverage for the claims. The letter explained there was no 

coverage under the CGL policies’ “Coverage A,” bodily injury and property damage 

liability, because there were no allegations of property damage or bodily injury caused by 

an occurrence, plus the insurance did not cover the employer’s liability for unpaid wages 

and overtime. The letter explained there was no coverage under the CGL policies’ 

“Coverage B,” personal and advertising injury liability, because the complaint’s 

allegations did not fall within the policy definitions, plus the policies contained an 

exclusion for employer’s liability. The letter stated Western reserved the right to assert 

any additional terms, conditions, exclusions and/or policy provisions to deny coverage 

and that nothing in the letter constituted a waiver or estoppel of Western’s right to assert 

additional defenses.

Real Care filed an answer to the underlying complaint, but the trial court later 

ordered the answer stricken and default was entered after Real Care, which went out of 

business, refused to respond to discovery requests because the company was defunct.

Thereafter, the trial court held a hearing on the amount of damages.

After the default prove-up hearing on damages, Portugal’s counsel sent a letter to 

Western, advising that a default had been entered and a default judgment would be 

forthcoming, and tendering the claims to Western for indemnity.

Western responded with a second letter explaining in detail that the claims made 

in the underlying lawsuit were not covered by the insurance policies, because the claims 
6

were for economic loss for unpaid wages/benefits, which were not covered by the 

insurance policies.3 Western had issued six successive one-year policies of CGL and 

professional liability insurance during the pertinent period. The CGL policies by their 

own terms applied only to “ ‘bodily injury’ ”

4 or “ ‘property damage’ ”5

“caused by” an 

“ ‘occurrence,’ ”

6 or “ ‘personal and advertising injury.’ ”7 Moreover, the CGL policies 

expressly excluded from coverage (1) bodily injury or property damage “expected or 

intended from the standpoint of the insured” (expected or intended injury), (2) bodily 

injury or property damage “for which the insured is obligated to pay damages by reason 

of the assumption of liability in a contract or agreement [with exceptions inapplicable 

here]” (contractual liability), (3) personal and advertising injury “[a]rising out of breach 

 

3 Western’s letter erroneously stated this was its first notice of the underlying lawsuit. 

Portugal noted that Real Care had previously tendered defense of the lawsuit to Western 

and she makes much of this oversight here. For purposes of this appeal, it does not 

matter when Western learned of the underlying lawsuit, because Western never had a 

duty to defend or indemnify Real Care, as we explain post.

4 The insurance policies defined “ ‘[b]odily injury’ ” as “bodily injury, sickness or 

disease sustained by a person, including death resulting from any of these at any time.”

5 The insurance policies defined “ ‘[p]roperty damage’ ” as “a. Physical injury to 

tangible property, including all resulting loss of use of that property. All such loss of use 

shall be deemed to occur at the time of the physical injury that caused it; or [¶] b. Loss 

of use of tangible property that is not physically injured. All such loss of use shall be 

deemed to occur at the time of the ‘occurrence’ that caused it.” (Italics added.)

6 The insurance policies defined “ ‘[o]ccurrence’ ” as “an accident, including continuous 

or repeated exposure to substantially the same general harmful conditions.” (Italics 

added.)

7 The insurance policies defined “ ‘[p]ersonal and advertising injury’ ” as “injury, 

including consequential ‘bodily injury,’ arising out of one or more of the following 

offenses” -- false arrest/detention/imprisonment, malicious prosecution, wrongful 

eviction/entry into private dwelling, slander or libel, privacy violation, use of another’s 

advertising idea in the insured’s advertisement, or infringing on another’s copyright, 

trade dress, or slogan in the insured’s advertisement.
7

of contract,” and (4) bodily injury or personal and advertising injury “arising out of any:

[¶] . . . [¶] [e]mployment-related practices, policies, acts or omissions, such as coercion, 

demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or 

discrimination directed at that person . . . .”

As to the professional liability policies, Western asserted that they provided 

coverage for “ ‘bodily injury,’ ‘property damage’ or ‘personal injury’ . . . caused by 

‘professional incident.’ ”

8

 The policies expressly excluded injury or damage “for which 

the insured is obligated to pay damages by reason of the assumption of liability in a 

contract or agreement” (contractual liability) and they expressly excluded injury to “[a]n 

‘employee’ of the insured arising out of and in the course of: [¶] (a) Employment by the 

insured; or [¶] (b) Performing duties related to the conduct of the insured’s 

business. . . .”

Western’s second letter explained the claims “are not covered by the general 

liability/professional liability policies issued to Real Care. The under payment of wages 

to hourly employees does not constitute an ‘occurrence’ under a general liability policy, 

or a ‘professional incident’ under a professional liability policy. Also, the underpaid 

wage claims seek recovery for ‘economic loss’ which does not constitute ‘bodily 

injury[,’] ‘property damage[,’] or ‘personal and advertising injury’ under either the 

general liability or professional liability coverage provided by the Western World 

policies. The under payment of wage claims are further excluded by the policies’ 

‘employment related practices’ exclusion and ‘contractual liability’ exclusion. The 

policies’ ‘expected or intended injury’ exclusion and ‘employer’s liability’ exclusion also 

 

8

 The policies defined “ ‘[p]rofessional [i]ncident’ ” as “any negligent act or omission:

[¶] (a) In the furnishing of healthcare services . . . ; [¶] (b) In the rendering of any other 

professional services but only of the type described in the ‘Schedule’ of this coverage 

part [which included ‘Home Health Care’].” (Italics added.)
8

exclude coverage for the underpaid wage claims. The claims for punitive damages 

asserted against Real Care are further excluded by Insurance Code Section 533’s 

prohibition of coverage for ‘willful acts’ and the policies’ ‘punitive damages’ exclusion.”

After receiving Western’s second letter, Portugal’s counsel submitted a proposed 

default judgment for the trial court to sign, in which Portugal’s counsel included language 

stating Real Care had caused damages “and withheld tangible property of Plaintiff and 

Plaintiff Class which was due and owing to them during the class period . . . ,” even 

though the operative complaint did not include that language or theory.9 (Italics added.)

The trial court signed the judgment as proposed by Portugal’s counsel, including 

the “withheld tangible property” language. The default judgment awarded Portugal’s 

class approximately $23 million against Real Care.

Thereafter, Portugal filed the instant lawsuit as a judgment creditor lawsuit against 

Western under section 11580, subdivision (b)(2).10 The same pleading alleged other 

causes of action for fraudulent conveyance and alter ego against Real Care’s owner and 

 

9

 As we explain, post, the insertion of “withheld tangible property,” a theory not alleged 

in the operative complaint, does not help Portugal.

10 Section 11580 provides in pertinent part: “A policy insuring against losses set forth in 

subdivision (a) [including insurance against loss or damage resulting from liability for 

injury suffered by another person other than worker’s compensation] shall not be issued 

or delivered to any person in this state unless it contains the provisions set forth in 

subdivision (b). Such policy, whether or not actually containing such provisions, shall be 

construed as if such provisions were embodied therein. [¶] . . . [¶] (b) Such policy shall 

not be thus issued or delivered to any person in this state unless it contains all the 

following provisions: [¶] (1) A provision that the insolvency or bankruptcy of the 

insured will not release the insurer from the payment of damages for injury sustained or 

loss occasioned during the life of such policy. [¶] (2) A provision that whenever 

judgment is secured against the insured or the executor or administrator of a deceased 

insured in an action based upon bodily injury, death, or property damage, then an action 

may be brought against the insurer on the policy and subject to its terms and limitations, 

by such judgment creditor to recover on the judgment.” (Italics added.)
9

subsequent business entity which are not parties to this appeal. The only count alleged 

against Western is the fourth cause of action, which alleged that, “plaintiff obtained a 

judgment against . . . Real Care . . . for damages in the amount of $23,222,507.00, [plus

interest], for personal injury and property damage suffered by Plaintiff and the Plaintiff 

Class as the proximate result of the negligence of the insured.”

The complaint alleged that, under the insurance policies, Western “agreed to ‘pay 

those sums the insured becomes legally obligated to pay as damages because of any 

‘bodily injury,’ ‘property damage’ or ‘personal injury’ to which this coverage part applies 

caused by a ‘professional incident.’ Plaintiff is informed and believes that the 

professional liability coverage part does not define the specific term ‘personal injury’ 

used in the professional liability coverage part and that the judgment for Plaintiff and the 

Plaintiff Class is for ‘personal injury[,’] as that term is reasonably understood by a lay

person and interpreted against an insurer, caused by a ‘professional incident.’ Plaintiff is 

informed and believes the judgment is covered as ‘property damage’ caused by an 

occurrence.” The complaint also alleged, “Plaintiff is informed and believes that Plaintiff 

and the Plaintiff Class are ‘temporary workers’ within the meaning of the policies who 

worked temporary assignments in the insured’s clients’ homes to meet short term[] work 

loads. Plaintiff alleges individually and on behalf of the Plaintiff Class that their 

judgment is not excluded under the terms of the policies.”

The complaint also alleged plaintiff’s class was a third party beneficiary of the 

insurance contracts between Real Care and Western, such that Western owed a duty of 

good faith and fair dealing to plaintiff’s class, and Western breached that duty by refusing 

to pay on the underlying judgment.

Western moved for summary judgment on two alternative grounds: (1) Portugal 

and the class lacked standing to sue under section 11580 because the claims were not 

based on bodily injury, death, or property damage; and (2) the lawsuit was for wages and 

employment benefits, which were not even potentially covered under the insurance 
10

policies. Western submitted copies of the insurance policies, attached to a declaration by 

Western claims consultant Richard Hazard. Western’s separate statement of undisputed 

facts asserted that plaintiff provided “in-house medical services to Real Care’s clients.” 

The separate statement quoted the allegations from the underlying complaint as to what 

claims were being made, quoted the insurance policy provisions, and cited its two letters 

to plaintiffs explaining denial of the tender of defense.

Portugal opposed the motion, arguing Western failed adequately to investigate the 

claims and was bound by the default judgment’s reference to “ ‘withheld tangible 

property.’ ” Portugal argued triable issues existed regarding coverage. Whereas 

Western’s separate statement of undisputed facts asserted (incorrectly) that Real Care 

provided “medical services,” Portugal’s response disputed that assertion and noted 

(correctly) that “the complaint does not allege ‘in-house medical services’−see 

description of non-medical professional services.”

Portugal did not dispute the contents of the insurance policies but objected on 

grounds of irrelevance as well as lack of foundation, authentication, and personal 

knowledge of the declarant, Western claims’ consultant Hazard, who submitted true and 

correct copies of the insurance policies, because there was no foundation that Hazard 

worked in the underwriting department. The trial court overruled Portugal’s objections.

Portugal also presented her own separate statement purporting to contain 

additional undisputed facts. She cited an “Industrial Welfare Commission Wage Order 

NO. 15,”

11 addressing “personal attendants,” and she presented a declaration from her 

 

11 The Industrial Welfare Commission (IWC) is authorized to issue wage orders fixing 

wages, hours, and working conditions. (Brinker Restaurant Corp. v. Superior Court

(2012) 53 Cal.4th 1004, 1026-1027.) According to Wage Order No. 15, “ ‘[p]ersonal 

attendant’ ” includes persons employed “by any third party employers recognized in the 

health care industry to work in a private household, to supervise, feed, or dress a child or 

person who by reason of advanced age, physical disability, or mental deficiency need 
11

human resources management expert and consultant, Richard Danehy, opining that 

“[p]rofessional incidents” alleged in the underlying lawsuit included the furnishing of 

professional services, and factual disputes existed concerning whether or not Real Care’s 

services were “home health care services” or other professional services within the scope 

of the insurance policies. Portugal submitted her own declaration attesting she “sustained 

personal injury, damages and harm . . . ,” and attaching her employment agreement, pay 

records, and a Real Care brochure. Additionally, Portugal submitted a declaration by her 

insurance claims expert, David Peterson. Portugal also submitted a declaration from her 

attorney, Michael Parks, arguing a dispute existed over Western’s first coverage 

declination letter, because it was unsigned, bore no letterhead, and Western’s second 

letter said it was previously unaware of the claim which, according to Parks, should 

preclude Western from denying coverage.

The trial court sustained Western’s evidentiary objections to Danehy’s entire 

declaration on grounds of hearsay, lack of personal knowledge, confusion of issues and 

undue prejudice, lack of foundation, and irrelevance. The trial court sustained Western’s 

evidentiary objections to Peterson’s declaration on grounds it merely presented argument. 

The trial court sustained Western’s objection to the portion of Parks’s declaration in 

which Parks argued that a dispute existed as to whether Western’s first declination letter 

should be disregarded.

Following a hearing, the trial court entered judgment in favor of Western based on 

the court’s written order granting summary judgment, in which the court ruled as follows: 

Portugal and her class lacked standing to bring a judgment creditor suit under section 

11580, because the statute authorized suit only where the underlying judgment was based 

upon bodily injury, death, or property damage. The judgment to compensate Portugal’s 

 

supervision. The status of ‘personal attendant’ shall apply when no significant amount of 

work other than the foregoing is required.”
12

class for unpaid wages and overtime and meal and rest breaks was not a judgment based 

upon bodily injury, death, or property damage. The default judgment’s reference to 

“ ‘withheld tangible property’ ” did not alter that conclusion. Additionally, section 11580 

states any action against the insurer is subject to the terms and limitations of the 

insurance policy, and therefore no such action could lie if the underlying claims were not 

potentially covered by the insurance policies.

The trial court went on to explain that the class action claims for wages and 

employment benefits were not potentially covered under the terms of any of the insurance 

policies, for the following reasons: “Unpaid wages and overtime are intangible, 

economic interests.” They are not physical injury to or loss of use of tangible property 

within the definition of “ ‘property damage.’ ” They are not “ ‘bodily injury’ ” under the 

policy language and under case law. “ ‘CGL policies do not provide coverage for 

economic losses that cause emotional distress.’ ” They are not “ ‘personal and 

advertising injury’ ” under the policies, which list “ ‘false arrest, malicious prosecution, 

wrongful eviction, libel and slander, right of privacy, misappropriation of advertising 

idea, or copyright or trade dress infringement in advertising.’ ” Unpaid wages and 

overtime are not property damage, bodily injury, or personal and advertising injury 

caused by a “ ‘professional incident’ ” under the policies. Real Care did not provide 

medical or other professional services; it provided household services. Real Care’s 

failure to pay statutory wage and employment benefits to its employees was not caused 

by a negligent act or omission in furnishing healthcare services to third parties. The 

failure to pay wages and other benefits was not an “ ‘occurrence’ ” under the CGL 

policies, which defined “ ‘occurrence’ ” as an accident. (See fn. 6, ante.) The failure to 

pay wages and employment benefits was excluded from coverage by the CGL policies’ 

exclusions for “ ‘contractual liability,’ ” “ ‘employment related practices,’ ” and 

“ ‘expected or intended injury.’ ”
13

DISCUSSION

I. Standard of Review

A defendant may move for summary judgment on the ground that the action has 

no merit. (Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment should 

be granted if the submitted papers show that “there is no triable issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. 

Proc., § 437c, subd. (c).) A defendant meets his burden of showing that a cause of action 

has no merit if it shows that one or more elements of the cause of action cannot be 

established, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a 

triable issue of material fact exists. (Ibid.)

The burden of persuasion remains with the party moving for summary judgment. 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) When the defendant 

moves for summary judgment, in those circumstances in which the plaintiff would have 

the burden of proof by a preponderance of the evidence, the defendant must present 

evidence that would preclude a reasonable trier of fact from finding that it was more 

likely than not that the material fact was true (id. at p. 851), or the defendant must 

establish that an element of the claim cannot be established, by presenting evidence that 

the plaintiff does not possess and cannot reasonably obtain, needed evidence. (Id. at 

p. 854.) We review the record and the determination of the trial court de novo. (Merrill 

v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Kahn v. East Side Union High School Dist. 

(2003) 31 Cal.4th 990, 1003; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 

460.)

“ ‘First, we identify the issues raised by the pleadings, since it is these allegations 

to which the motion must respond; secondly, we determine whether the moving party’s 

showing has established facts which negate the opponent’s claims and justify a judgment 

in movant’s favor; when a summary judgment motion prima facie justifies a judgment, 
14

the third and final step is to determine whether the opposition demonstrates the existence 

of a triable, material factual issue.’ ” (Waschek v. Dept. of Motor Vehicles (1997) 59 

Cal.App.4th 640, 644.)

II. Plaintiff’s Summary Adjudication Argument

Plaintiff argues the trial court, after erroneously concluding she lacked standing 

under section 11580, erroneously moved into summary adjudication of insurance 

coverage issues, even though Western did not move for summary adjudication. We 

disagree.

A party may move for summary adjudication of a legal issue or a claim for 

damages that does not completely dispose of a cause of action, an affirmative defense, or 

an issue of duty. (Former Code Civ. Proc., § 437c, subd. (f)(1).) Special procedural 

requirements apply to summary adjudication motions. (Ibid.) A party may move for 

summary adjudication as an alternative to summary judgment, but the motion must 

clearly so state. (Id. at subd. (f)(2).) When a party has moved for summary judgment, a 

trial court may not grant summary adjudication unless the party has alternatively moved 

for summary adjudication. (UDC-Universal Development v. CH2M Hill, L.P. (2010) 181 

Cal.App.4th 10, 25.)

Western did not move for summary adjudication, nor did it need to do so. It 

eliminated, one by one, each possible basis for the lawsuit against it in its motion for 

summary judgment.

Portugal claims the trial court unfairly treated Western’s summary judgment 

motion as a summary adjudication motion on a list of coverage issues. She claims 

“unfairness . . . is manifest in this case,” because Western asserted “ ‘eight or nine 

different independent grounds for summary judgment, all of which were absolutely 

conclusive on the matter’ ” according to Western, yet Western “never made a separate 

noticed motion for summary adjudication.”
15

Plaintiff apparently misunderstands summary adjudication. Had the trial court 

determined that some of Western’s points had merit but others did not, it would have 

been improper for the court to enter an order granting summary adjudication as to the 

former points. However, the trial court’s determination that all of Western’s points had 

merit justified entry of summary judgment. There was no need for, and no ruling on, 

summary adjudication.

III. Evidentiary Rulings

Near the end of her opening brief on appeal, Portugal challenges the trial court’s 

evidentiary rulings. Resolution of these evidentiary claims is required before we address 

the contentions about triable issues.

A. Exclusion of Evidence

1. Exclusion of the Danehy Declaration

Portugal argues the trial court erroneously excluded the declaration of Danehy on 

various grounds: hearsay, lack of personal knowledge, lack of foundation, lack of 

qualification as an insurance expert, irrelevance, and causing confusion of issues and 

undue prejudice. Portugal claims Danehy’s declaration established triable issues as to 

how “ ‘home health care’ ” and “ ‘personal attendant’ ” professional services furnished 

by Real Care were interpreted and that this issue existed in connection with Real Care’s 

business operations. However, Danehy’s declaration merely expressed a tentative 

opinion that a factual dispute existed as to whether the claims involved home health care 

services or other professional services. His opinion was of no assistance to the court and 

was irrelevant, and we therefore need not address the other grounds for exclusion.12

 

12

 While this appeal was pending, Portugal sent us a letter noting the publication of Cash 

v. Winn (2012) 205 Cal.App.4th 1285. The court in Cash held a home care employee 

was a personal attendant and thus exempt from statutory overtime requirements because 

her health care tasks were an incidental or minor part of her job. (Id. at pp. 1299-1300.) 

The Cash court further held the trial court erred in instructing the jury that the personal 
16

2. Exclusion of the Peterson Declaration

Portugal argues the trial court had erroneously stricken the entire Peterson 

declaration. Portugal asserts, “The only basis identified by the trial court, that Peterson’s 

declaration contains argument, is an insufficient basis to strike the entire declaration. 

[Citation.] Based on the Court’s final order ruling on objections, portions of the Peterson 

declaration offering testimony fatal to Western World’s claim that it did not owe a 

potential for coverage and acted reasonably, was admitted into evidence. [Citations.] 

This evidence demonstrated that there were material factual disputes that Western World 

acted in bad faith and did not properly consider or investigate potential coverage for the 

underlying class action lawsuit against its insured after Western World when the 

complaint was tendered.”

If Portugal means “portions” of the declaration were not argument and therefore 

should have been admitted, she has not specified what portions to which she refers. Nor 

does she offer any legal authority. We accordingly disregard this contention as 

inadequately briefed. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672, fn. 3 

[reviewing court may disregard contentions unsupported by factual and/or legal 

analysis].)

In any event, Peterson’s declaration did not show a potential for coverage but 

merely complained about how Western handled the tender of defense, arguing Western 

acted in bad faith and failed adequately to investigate and evaluate the claims. As we 

explain post, there was no potential coverage here, and therefore it does not matter how 

Western handled the claim.

Accordingly, we reject Portugal’s challenges to the trial court’s exclusion of 

evidence.

 

attendant exemption was inapplicable when employees regularly performed any health 

care services. (Id. at p. 1304.) Cash does not help Portugal.
17

B. Admission of Hazard’s Declaration

Portugal contends the trial court improperly admitted evidence offered by 

Western. She filed objections to Richard Hazard’s declaration and its Exhibit G 

(Western’s first declination letter) on grounds including lack of authentication or personal 

knowledge regarding the letter or the claims handling on the file. On appeal, Portugal’s 

argument consists only of the following: “The Hazard declaration did not properly 

authenticate or explain the creation or maintenance of the draft letter or how it was 

handled, if at all, as a business record and the trial court erred in admitting Mr. Hazard’s 

testimony and this document into evidence.” Portugal cites no legal authority whatsoever 

on this point, and we therefore disregard the contention. (Badie v. Bank of America

(1998) 67 Cal.App.4th 779, 784-785.)

Portugal also contends Western refused to produce its underwriting or claims files. 

She cites to Western’s discovery response asserting attorney-client privilege and workproduct privilege. She fails to cite to any discovery motion to compel production or any 

court order ordering production.

Portugal fails to show erroneous admission of evidence.

IV. Standing

Portugal argues the trial court erroneously determined that because this case did 

not involve bodily injury, wrongful death, or property damage, Portugal and the class 

lacked standing under section 11580. Portugal argues the statute’s limitations do not 

matter, because she had independent standing under the insurance policies, which 

contained language broader than the statute. Western’s policies said, “ ‘a person . . . may 

sue us to recover . . . on a final judgment against an insured obtained after an actual trial 

. . . .’ ” Portugal argues all she needed for standing was a judgment obtained after a trial, 

and the default judgment obtained after the default prove-up hearing satisfied this 

requirement.
18

However, “standing” is a misnomer, which was improperly used by Western and 

adopted by the trial court. An injured third party is generally prohibited from suing a 

tortfeasor’s insurer for failing to defend or indemnify the insured against the claim, but 

exceptions exist where the third party plaintiff has a judgment against the insured, where

the insured has assigned its rights under the policy to the third party, or where the insurer 

sues the third party in a declaratory relief action. (Otay Land Co. v. Royal Indemnity Co. 

(2008) 169 Cal.App.4th 556, 560-561.)

Portugal has a judgment against the insured and therefore has standing to sue the 

insurer under section 11580. But she cannot prevail in her lawsuit against the insurer if 

the underlying judgment is not based on bodily injury, death, or property damage. 

Western’s cited authority does not say that a person lacks standing under section 11580 if 

the underlying judgment is not based on bodily injury, death, or property damage. 

(Xebec Development Partners, Ltd. v. National Union Fire Insurance Co. (1993) 12 

Cal.App.4th 501, 526-527 (Xebec), overruled on other grounds in Essex Ins. Co. v. Five 

Star Dye House, Inc. (2006) 38 Cal.4th 1252, 1265). In Xebec, under a subheading titled, 

“Standing,” the appellate court said the plaintiff claimed standing as an assignee of the 

insured; the insurer did not question that status; and the Xebec court said the assignment 

appeared to have been entirely orthodox. (Xebec, at pp. 526-527.) The Xebec court went 

on to say that the plaintiff suggested shortly before trial that it could also sue under 

section 11580, but the trial court apparently never ruled on a motion to amend the 

complaint. (Xebec, at p. 527.) The court said, “In any event [the plaintiff] could not 

properly have proceeded under subdivision (b)(2) [of section 11580], because [its] 

underlying action against [the insureds] patently was not ‘based upon bodily injury, 

death, or property damage’ within the meaning of the section.” (Ibid.) Thus, Xebec did 

not say the plaintiff lacked standing to sue under section 11580, but rather that the 

plaintiff could not prevail under section 11580.
19

Here, the underlying judgment gave Portugal standing to file the lawsuit under 

section 11580, but the absence of any bodily injury, death, or property damage as the 

basis for the underlying judgment -- as we discuss post -- prevents her from prevailing. 

That the trial court adopted the wrong word (“standing”) does not affect our resolution of 

this appeal, because we review the trial court’s ruling, not its reasoning, and we may 

affirm the judgment for reasons different from the trial court’s reasons. (Troche v. Daley

(1990) 217 Cal.App.3d 403, 407-408.)

V. Summary Judgment

Plaintiff argues triable issues of material fact exist, precluding summary judgment. 

We disagree.

Where an insurer tortiously refuses to defend and as a consequence the insured 

suffers a default judgment, the insurer is liable on the judgment against the insured. 

(Amato v. Mercury Casualty Co. (1997) 53 Cal.App.4th 825, 833 (Amato).) A liability 

insurer’s duty to defend an insured in a lawsuit filed by a third party is broader than the 

insurer’s duty to indemnify; it therefore may owe a duty to defend its insureds even when 

a trier of fact might ultimately determine that the policy does not entitle them to 

indemnity for the claims against them. (Montrose Chemical Corp. v. Superior Court

(1993) 6 Cal.4th 287, 300 (Montrose Chemical); Gonzalez v. Fire Ins. Exchange (2015) 

234 Cal.App.4th 1220, 1229 (Gonzalez).) Whether the insurer owes a duty to defend 

turns not on whether the insured proves to be actually entitled to be indemnified for the 

underlying claim, but only on those facts known by the insurer at the inception of a third 

party lawsuit, along with facts extrinsic to the complaint that may also reveal a possibility 

that the claim may be covered by the policy. (Montrose Chemical, at p. 295; Gonzalez, at 

p. 1229.)

The insurer’s coverage obligation begins whenever the insurer becomes aware of 

facts giving rise to the potential for coverage, and continues until it has been established 

that there is no potential for coverage. (Montrose Chemical, supra, 6 Cal.4th at p. 295.)
20

A liability insurer’s duty to defend arises when a suit against its insured seeks 

damages that are potentially within the policy’s coverage. (Gonzalez, supra, 234 

Cal.App.4th at p. 1229; La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. 

(1994) 9 Cal.4th 27, 43 (La Jolla).) If the claim against an insured cannot, by any 

conceivable theory, raise an issue that would bring it within the policy’s coverage, the 

insurer has no duty to defend its insured. (Gonzalez, at p. 1230; La Jolla, at p. 43.) The 

duty to defend “does not depend on the labels given to the causes of action in the 

[underlying claims against the insured]; instead it rests on whether the alleged facts or 

known extrinsic facts reveal a possibility that the claim may be covered by the policy.” 

(Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1034.)

“In order to prevail on an insurer’s motion for summary judgment based on the 

absence of a duty to defend, ‘the insured need only show that the underlying claim may

fall within policy coverage; the insurer must prove it cannot.’ [Citation.] Once the 

possibility of coverage arises, ‘[a]ny doubt as to whether the facts establish [or defeat] the 

existence of the defense duty must be resolved in the insured’s favor.’ ” (Travelers 

Property Casualty Company of America v. Charlotte Russe Holding, Inc. (2012) 207 

Cal.App.4th 969, 977, fn. omitted [summary judgment based on absence of duty to 

defend was improper where there was potential coverage for product disparagement in 

underlying claim], disapproved as stated in Harford Casualty Ins. Co. v. Swift 

Distribution, Inc. (2014) 59 Cal.4th 277, 295.) While a complaint is to be liberally 

construed in favor of potential coverage, the insurer has no duty to defend where the 

potential for liability is “ ‘ “ ‘tenuous and farfetched.’ ” ’ ” (Gonzalez, supra, 234 

Cal.App.4th at p. 1230.)

Even where the defendant has moved for summary judgment, the insured has the 

burden of proving her claim falls within the scope of the policy’s basic coverage. 

(Gonzalez, supra, 234 Cal.App.4th at p. 1230.) In contrast, when an insurer seeks 
21

summary judgment on the ground that the claim is excluded, the insurer has the burden to 

conclusively show the claim falls within an exclusion. (Id. at pp. 1230, 1237, 1245.)

As indicated, section 11580, subdivision (b)(2), requires insurance policies to 

contain a provision “that whenever judgment is secured against the insured . . . in an 

action based upon bodily injury, death,[13] or property damage, then an action may be 

brought against the insurer on the policy and subject to its terms and limitations, by such 

judgment creditor to recover on the judgment.” (See fn. 10, ante.) Additionally, Portugal 

contends there was potential coverage on the policies independent of section 11580, 

subdivision (b)(2).

Here, Western’s motion established that: (1) the underlying action was for 

intangible economic loss and was not based on bodily injury or property damage, because 

the claims did not meet the CGL insurance policy definitions for “ ‘bodily injury,’ ” 

“ ‘property damage,’ ” or “ ‘personal and advertising injury’ ”; (2) even if the claims had 

met those definitions, they were not caused by any “ ‘occurrence,’ ” i.e., an “accident,” as 

required for coverage; (3) even if caused by an occurrence, they were excluded from 

coverage by the policy exclusions for employer liability and/or contractual liability; (4) 

the claims did not meet the professional liability policy definitions for bodily injury, 

property damage, or personal injury caused by a professional incident; and (5) even if 

they met the professional liability policy definitions, coverage was excluded for injury to 

the insured’s employee arising out of and in the course of the employment or performing 

duties related to the conduct of the insured’s business.

Injury to intangible economic interests does not amount to injury to tangible 

property and therefore does not constitute property damage for insurance coverage. 

(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 17 [the focus of coverage for 

 

13 Portugal does not contend “death” was a triable issue. We therefore omit further 

reference to death.
22

property damage is the property itself, not intangible economic losses or nonperformance 

of contractual obligations, and policy covering physical injury to tangible property 

precluded coverage for intangible economic losses]; Low v. Golden Eagle Ins. Co. (2002) 

99 Cal.App.4th 109, 113-114 [liability insurer whose policy covered bodily injury and 

property damage had no duty to defend consumer class-action complaint seeking 

recovery of economic losses from manufacturer of diet products]; Hurley Construction

Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 539 [fraud by a 

contractor overcharging to repair properties was economic loss, not tangible property 

damage]; Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 857-860 

[investment losses do not constitute physical injury to tangible property]; Devin v. United 

Services Auto Assn. (1992) 6 Cal.App.4th 1149, 1158-1159 [financial loss in decreased 

property value resulting from intentional and negligent misrepresentations in sale of 

property was not injury to tangible property under general liability policy]; Warner v. 

Fire Ins. Exchange (1991) 230 Cal.App.3d 1029, 1034 [damage to economic interests 

caused by misrepresentation in sale of real property was not tangible property damage]; 

Allstate Ins. Co. v. Interbank Financial Services (1989) 215 Cal.App.3d 825, 830 

[business liability policy covering property damage did not cover economic loss in tax 

shelter investment resulting from poor professional advice]; Giddings v. Industrial 

Indemnity Co. (1980) 112 Cal.App.3d 213, 219 [strictly economic losses, such as loss of 

goodwill, investment, or anticipated benefit of a bargain, do not constitute damage or 

injury to tangible property].)

Portugal argues that her underlying complaint did specifically allege she and her 

class “ ‘suffered property damage and/or financial loss . . . .’ ” However, her use of 

ellipses in her brief hides the rest of the sentence; the complaint alleged Portugal and her

class “suffered property damage and/or financial loss in the form of unpaid overtime and 

other wages and benefits.” (Italics added.) Unpaid overtime, wages, and benefits are not 

property damage. Portugal also quotes her allegation that she suffered “ ‘actual financial 
23

loss and damage to her property rights . . . .’ ” This conclusory allegation does not even 

remotely suggest damage to tangible property.

Despite the fact that none of the alleged claims were covered by the insurance 

policies, Portugal relies on the words “withheld tangible property” which her lawyer 

craftily inserted into the judgment. This language does not help Portugal. In a default 

case where there is no answer, the trial court cannot enter a judgment against a defaulting 

defendant “which awards greater relief than that sought in the plaintiff’s complaint.” (In 

re Marriage of Lippel (1990) 51 Cal.3d 1160, 1167, citing Code Civ. Proc., § 58014) 

This rule applies if no answer was filed or if, as here, the defendant filed an answer but

the court ordered the answer stricken. (Accord, Matera v. McLeod (2006) 145 

Cal.App.4th 44, 60; Electronic Funds Solutions, LLS v. Murphy (2005) 134 Cal.App.4th 

1161, 1173-1177.)

On appeal, Portugal says the withheld tangible property was that she had to use 

gasoline in her car to run errands for her clients. This claim is not discernible from the 

complaint. Portugal cites a declaration from Real Care CEO Ken Wang, which he filed 

in the underlying lawsuit in opposition to class certification, and which Portugal attached 

to her opposition to Western’s summary judgment motion. Wang attested Real Care 

provided clients with “personal in-home care to provide assistance bathing, dressing and 

grooming, incontinence care, preparation of meals, light housekeeping and laundry, 

medication monitoring, [and] transportation to shopping and medical appointments . . . .” 

Customers could hire these “personal attendant[s]” directly, with Real Care serving as a 

personnel agency, or they could contract with Real Care in which case the “personal 

 

14 Civil Code section 580 provides: “The relief granted to the plaintiff, if there is no 

answer, cannot exceed that demanded in the complaint, in the statement required by 

Section 425.11 [statement of damages in personal injury or wrongful death complaint], or 

in the statement provided for by Section 425.115 [preservation of right to seek punitive 

damages] . . . .”
24

attendant” would be on Real Care’s payroll. This declaration does not help Portugal. 

Portugal cites no authority whatsoever for her assertion that employees’ use of personal 

vehicles in the course of their work constitutes a withholding of tangible property by the 

employer.

Moreover, a judgment in the underlying action should never have been entered 

that included a claim for “withheld tangible property” that was never alleged in the 

complaint. “It is imperative in a default case that the trial court take the time to analyze 

the complaint at issue and ensure that the judgment sought is not in excess of or 

inconsistent with it. It is not in plaintiffs’ interest to be conservative in their demands, 

and without any opposing party to point out the excesses, it is the duty of the court to act 

as gatekeeper, ensuring that only the appropriate claims get through. That role requires 

the court to analyze the complaint for itself--with guidance from counsel if necessary--

ascertaining what relief is sought as against each defaulting party . . . .” (Heidary v. 

Yadollahi (2002) 99 Cal.App.4th 857, 868.) The record does not show what evidence 

Portugal presented at the default hearing to justify the $23 million default judgment. 

Portugal says Western could not justify summary judgment without producing this 

evidence. However, the evidence at the default hearing should not have included 

damages for “withheld tangible property” not alleged in the complaint, because “[t]he 

court cannot allow a plaintiff to prove different claims or different damages at a default 

hearing than those pled in the complaint.” (Id. at p. 868.)

Despite these rules, Portugal’s counsel did get the court to sign the underlying 

judgment with the improper reference to “withheld tangible property.” Portugal contends 

the “finding” that she was “damaged because tangible property was withheld from her,

became a binding finding of fact on Western.” This language, according to Portugal, 

supports her claim of “property damage” under the professional liability policy and 

requires reversal of the summary judgment.
25

We reject Portugal’s assertion that this improper reference is binding and compels 

reversal of the summary judgment. Without explanation, Portugal cites Amato, supra, 53

Cal.App.4th at page 837, in support of this contention. We see nothing on the page cited 

in Amato by Portugal to support the contention that the trial court was bound by the 

“withheld tangible property” language except perhaps the following quote: “ ‘[I]t is 

stated to be the general rule that “an insurer who has had an opportunity to defend is 

bound by the judgment against its insured as to all issues which were litigated in the 

action against the insured.” ’ ” (Ibid., italics added.) But since the “withheld tangible 

property” language was not in the complaint, it can hardly be said that theory was 

litigated.

Even assuming for the sake of argument that the underlying complaint could 

somehow be read to involve “withheld tangible property,” there would still be no 

coverage, because the policies covered loss of use of tangible property only if caused by 

an “ ‘[o]ccurrence,’ ” which was defined as an “accident.” “ ‘When one expects or 

intends an injury to occur, there is no “accident.” ’ ” (Gonzalez, supra, 234 Cal.App.4th 

at p. 1234, quoting Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661, 

669.)15 Moreover, the policies excluded damage/injury arising from contractual liability 

or employment.

Even the professional liability policies excluded (1) bodily injury, property 

damage, or personal injury for which the insured was obligated to pay damages by reason 

of the assumption of liability in a contract or agreement, and (2) bodily injury or personal 

injury to an employee of the insured arising out of and in the course of the employment. 

 

15

 Intentional acts are not accidents unless some additional, unexpected, independent and 

unforeseen happening occurs that produces damage (Gonzalez, supra, 234 Cal.App.4th at 

p. 1233, citing Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 598), and 

Portugal has not shown any evidence of such a happening.
26

Therefore, even assuming for the sake of argument that Real Care’s services constituted 

healthcare services and home health care services, making them subject to the 

professional liability policies which defined “[p]rofessional incident” as any negligent act 

or omission in the furnishing of healthcare services or other professional services 

described in a Schedule which included “home health care services,” and even assuming 

Real Care’s alleged failure to pay their employees could somehow constitute negligence, 

all of the claims by Portugal and the class were excluded from coverage under the 

professional liability policies’ exclusions for contractual liability and employer’s liability.

We conclude Portugal fails to demonstrate that any of her causes of action may fall 

within the scope of the policy. (See Gonzalez, supra, 223 Cal.App.4th at p. 1236.) 

Moreover, beyond the evidence establishing that Portugal’s claims are not covered, 

Western has conclusively established that all of the claims are excluded.

DISPOSITION

The judgment is affirmed. Western shall recover its costs on appeal. (Cal. Rules 

of Court, rule 8.278(a)(1), (2).)

 MURRAY , J.

We concur:

 NICHOLSON , Acting P. J.

 BUTZ , J.