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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRISP ENTERPRISES INC., A California 

Corporation doing business as C2 

Reprographics, 

Plaintiff-Appellant, 

 v. 

GOLDEN EAGLE INSURANCE 

COMPANY, A Massachusetts Corporation; 

et al., 

Defendants-Appellees.

No. 16-55657 

D.C. No. 

8:15-cv-02011-JVS-KES 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and submitted October 5, 2017

Pasadena, California

Before: MOTZ,** M. SMITH, and NGUYEN, Circuit Judges.

Appellant Crisp Enterprises (“C2”) appeals the district court’s denial of its 

motion for partial summary judgment and sua sponte grant of summary judgment 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Diana Gribbon Motz, United States Circuit Judge for 

the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

FILED

OCT 11 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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to Appellee Golden Eagle Insurance Company (“Golden Eagle”). We have 

jurisdiction pursuant to 28 U.S.C. § 1291 and review the district court’s summary 

judgment ruling de novo. Microtec Research, Inc. v. Nationwide Mut. Ins. Co., 40 

F.3d 968, 970 (9th Cir. 1994). We affirm.

1. In Hartford Casualty Insurance Co. v. Swift Distribution, Inc., the 

California Supreme Court held that to trigger the duty to defend for disparagement, 

a declaratory plaintiff must be able to point to “a false or misleading statement that 

(1) specifically refers to the [underlying] plaintiff’s product or business and (2) 

clearly derogates that product or business,” and that “[e]ach requirement must be 

satisfied by express mention or by clear implication.” 326 P.3d 253, 256 (Cal. 

2014).

We find no facts in the materials C2 provided to Golden Eagle—including 

the underlying complaint, excerpts of deposition testimony, and client letter—that 

could meet Swift’s specificity requirements. Therefore, the district court correctly 

found that there was no “potential for coverage” that could trigger Golden Eagle’s

duty to defend C2 in the underlying suit. See Swift, 326 P.3d at 258 (quoting 

Montrose Chem. Corp. v. Superior Court, 861 P.2d 1153, 1161 (Cal. 1993)) 

(emphasis omitted); id. at 264, 266 (holding allegations in underlying suit that 

insured’s product name created customer confusion with the underlying plaintiff’s 
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product and that insured’s advertisements implied the inferiority of the underlying 

plaintiff “[in]sufficient to support a possible claim of disparagement”).

2. C2’s contention that Golden Eagle’s duty to defend was triggered by a 

potential claim for defamation fails for the same reason as its disparagement claim:

there are no facts in the materials C2 provided to Golden Eagle alleging that C2 

made a false or injurious statement. See Microtec, 40 F.3d at 972; cf. Barnett v. 

Fireman’s Fund Ins. Co., 108 Cal. Rptr. 2d 657, 663 (Cal. Ct. App. 2001) 

(defamation coverage where “[t]he complaints in the underlying action alleged 

appellants told third persons that [plaintiff’s] methods of doing business were 

flawed and would result in its failure and made other representations that 

disparaged and damaged [plaintiffs]”).

3. The sua sponte grant of summary judgment was proper. C2 “had a 

‘full and fair opportunity to ventilate the issues involved in th[is] matter,’” Gospel 

Missions of Am. v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003) (quoting 

Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982), and was “given 

reasonable notice that the sufficiency of [its] claim [would] be in issue,” Nozzi v. 

Hous. Auth. of Los Angeles, 806 F.3d 1178, 1199 (9th Cir. 2015) (internal 

quotation marks omitted).

AFFIRMED.