Travelers Property Casualty Company of America et al v. Centex Homes

Filing 200

Order by Hon. Samuel Conti granting 195 Motion for Reconsideration.(sclc1, COURT STAFF) (Filed on 8/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, FIDELITY &
GUARANTY INSURANCE COMPANY, THE
TRAVELERS INDEMNITY COMPANY OF
CONNECTICUT, AND ST. PAUL MERCURY
INSURANCE COMPANY,

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Plaintiffs,
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v.
CENTEX HOMES and DOES 1 through
10 inclusive,
Defendants.

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CENTEX HOMES,

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Counterclaimant,

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v.
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TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, et al.,

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Counterdefendant.
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) Case No. 11-3638-SC
)
) ORDER GRANTING DEFENDANT'S
) MOTION FOR RECONSIDERATION
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I.

INTRODUCTION
On April 8, 2013 the Court issued an order granting in part

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and denying in part the above-captioned parties' cross-motions for

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partial summary judgment.

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other things, the April 2013 Order vacated in part a May 10, 2012

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Order granting Centex's prior motion for partial summary judgment.

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ECF No. 56 ("May 2012 Order").

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Centex Homes ("Centex") now moves for reconsideration of the April

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2013 Order.

ECF No. 170 ("Apr. 2013 Order").

Among

With the Court's leave, Defendant

ECF No. 195 ("Mot.").

The primary question raised by

United States District Court

For the Northern District of California

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the Motion is under what circumstances does an insurer forfeit its

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right to control the defense of its insured.

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briefed, ECF Nos. 197 ("Opp'n"), 198 ("Reply"), and appropriate for

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determination without oral argument per Civil Local Rule 7-1(b).

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Having reviewed the arguments presented by the parties, the Court

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finds that its April 2013 Order is inconsistent with a case decided

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by the California Court of Appeal in May 2013, J.R. Marketing,

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L.L.C. v. Hartford Casualty Insurance Co., 216 Cal. App. 4th 1444

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(Cal. Ct. App. 2013).

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original decision was the correct one, and that its April 2013

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Order was in error.

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GRANTED.

The Motion is fully

Accordingly, the Court finds that its

Centex's motion for reconsideration is

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II.

BACKGROUND

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A.

Factual Background

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As this is not the first time the Court has recounted the

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facts in this matter, the Court borrows extensively from previous

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orders.

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communities throughout California, though it does not perform any

Centex participates in the development of residential

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actual construction work.

Instead, it hires subcontractors to

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build the homes it sells.

These subcontractors include American

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Woodmark ("Woodmark"), Foremost Superior Marble ("Foremost"), West

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Coast Countertops ("West Coast"), Fresno Precision Plastics

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("Fresno"), and Executive Landscape ("Executive").

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subcontractors purchased commercial general liability insurance

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from the above-captioned Defendants (collectively, "Travelers"),

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and the policies name Centex as an additional insured.

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Each of these

This case arises from a number of underlying construction

United States District Court

For the Northern District of California

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defect lawsuits filed against Centex in California state court.

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These underlying suits include the Adkins, Garvey, Acupan, and

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Conner actions.

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pursuant to one or more of the insurance policies described above.

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It is undisputed that, in each of these actions, some time elapsed

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between Centex's tender and Traveler's decision to provide a

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defense subject to a reservation of rights.

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retained the law firm of Newmeyer and Dillion LLP ("Newmeyer") to

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defend it in the underlying actions.

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to provide a defense, it insisted on appointing its own counsel.

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Centex insisted on retaining Newmeyer, arguing that Travelers

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waived its right to control the defense by waiting too long to

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provide one.

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Garvey, Acupan, and Conner actions are pertinent to the instant

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motion, the Court recounts them below.

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Centex tendered each of these actions to Travelers

In the interim, Centex

When Travelers finally agreed

As the facts surrounding the tender of the Adkins,

Centex tendered the defense and indemnification of the Garvey

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action to Travelers under the Woodmark policy on July 2, 2010.

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Travelers subsequently requested additional information concerning

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the lawsuit.

On February 16, 2011, Travelers concluded that the

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Garvey action was not covered under the Woodmark policy and

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declined to participate in the defense and indemnity of Centex.

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Travelers also indicated that it was willing to reconsider the

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denial and that its denial should not be construed as a waiver of

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any rights or defenses available to it under the policy.

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days later, Centex filed suit against Travelers for its failure to

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defend the Garvey action, as well as the Adkins action, which is

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discussed below.

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stating that it would agree to participate in the defense of

On April 18, 2011, Travelers reversed course,

United States District Court

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For the Northern District of California

A few

Centex, subject to a reservation of rights.

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dismissed its then-pending lawsuit without prejudice.

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Centex subsequently

Centex tendered the Adkins action to Travelers under the

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Woodmark and Foremost policies on April 1, 2010.

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2010, Travelers informed Centex that it had no defense or indemnity

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obligation in the Adkins action under the Woodmark policy and

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issued a declination of coverage letter.

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indicated that it was willing to reconsider the denial and that it

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did not waive any of its rights under the policy while

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investigating the matter.

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the Foremost policy on January 7, 2011.

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that it did not waive any of its rights under the policy.

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months later, after Centex sued Travelers for coverage, Travelers

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agreed to provide a defense subject to a full reservation of

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rights.

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obligation to provide coverage under both policies.

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On September 14,

At the time, Travelers

Travelers also declined coverage under
Again, Travelers stated
Several

Travelers also continued to dispute that it had an

Centex first tendered the Acupan action to Travelers under the

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Fresno policy on April 8, 2010.

On September 13, 2010, Travelers

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concluded that there was no potential for coverage under the Fresno

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policy and declined to provide a defense.

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months later, on June 28, 2011, Travelers reversed course and

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agreed to provide a defense pursuant to the Fresno Policy, subject

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to a reservation of rights.

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the Acupan action under the West Coast policy on January 21, 2011.

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ECF No. 148-24.

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additional information, Travelers agreed to participate in Centex's

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defense under the West Coast policy, subject to a reservation of

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rights.

United States District Court

For the Northern District of California

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ECF No. 148-14.

ECF No. 148-18.

Several

Centex also tendered

On June 1, 2011, after requesting and receiving

ECF Nos. 148-16, 148-26.

Centex tendered the Conner action to Travelers under the

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Executive policy on September 8, 2010.

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weeks later, on September 22, Travelers requested additional

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information.

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very same day.

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agreed to participate in the Centex's defense in the Conner action

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under the Executive policy subject to a reservation of rights.

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No. 148-29.

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B.

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On July 25, 2011, Travelers filed the instant action against

ECF No. 148-28.

ECF No. 148-27.

About two

Centex responded to the request that

ECF No. 146-11.

On January 21, 2011, Travelers

ECF

Procedural History

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Centex.

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Amended Complaint, which asserts causes of action for (1)

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declaratory relief, (2) breach of contract, (3) breach of the

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implied covenant of good faith and fair dealing, and (4)

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reimbursement.

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declaration that it has the right to control Centex's defense in

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the Garvey, Adkins, Acupan, and Conner actions.

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ECF No. 1.

One month later Travelers filed a First

Among other things, Travelers seeks a judicial

On May 10, 2012, the Court issued an order granting Centex's
motion for partial summary judgment and partial judgment on the

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pleadings.

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duty to defend is immediate, Travelers lost its right to control

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the defense of the Garvey and Adkins actions when it declined to

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participate in the defense of those actions in late 2010 and early

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2011.

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argument that Centex needed to show that Travelers intended to

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waive its right to control the defense of Garvey and Adkins

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actions, reasoning: "[A] court need not discern an insurer's intent

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to determine whether it has breached that duty.

United States District Court

For the Northern District of California

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Among other things, the Court found that, since the

May 2012 Order at 9-10.

evidence enough."

The Court also rejected Travelers'

A delay is

Id. at 13.

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The Court reconsidered and reversed this decision when it

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ruled on the parties' cross-motions for partial summary judgment on

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April 8, 2013.

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delay in responding to Centex's tenders of the Acupan and Conner

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actions divested Travelers of its right to control the defense of

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those actions.

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under Chase v. Blue Cross of California, 42 Cal. App. 4th 1142

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(Cal. Ct. App. 1996), an insurer could only lose a contractual

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right to arbitration under theories of waiver, forfeiture, or

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estoppel.

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cannot lose its right to control the defense of its insured through

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delay alone.

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waiver, forfeiture, or estoppel, none of which have been proven by

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Centex."

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judgment on the issue of whether Travelers had lost its right to

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control the defense of the Acupan and Conner actions, and vacated

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its prior decision that Travelers had lost its right to control the

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defense of the Garvey and Adkins actions.

Centex had asked the Court to find that Travelers'

April 2013 Order at 11.

See id.

Travelers responded that,

The Court agreed, finding that "an insurer

Rather, it may only lose that right through

Id. at 13.

The Court denied Centex's motion for summary

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Id. at 16.

The Court

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also found that there were triable issues of fact as to whether

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Travelers had a duty to defend the Garvey, Adkins, Acupan, and

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Conner actions.

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Id. at 6.

Centex subsequently moved for leave to file a motion for

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reconsideration concerning the Court's vacation of the May 2012

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Order and the Court's findings with respect to the Garvey and

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Adkins actions.

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file the motion.

ECF No. 183.

The Court granted Centex leave to

ECF No. 186.

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United States District Court

For the Northern District of California

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III. LEGAL STANDARD
A party may ask a court to reconsider and amend a previous

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order pursuant to Federal Rule of Civil Procedure 59(e) and Civil

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Local Rule 7-9.

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used sparingly in the interests of finality and conservation of

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judicial resources."

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Cir. 2003) (quotations omitted).

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that a party moving for reconsideration must generally show: (1) an

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intervening change in controlling law, (2) the emergence of new

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material facts, or (3) a manifest failure by the Court to consider

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material facts or dispositive legal arguments.

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grant reconsideration is committed to the sound discretion of the

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court."

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Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).

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Rule 59(e) offers "an extraordinary remedy, to be

Carroll v. Nakatani, 342 F.3d 934, 945 (9th
Civil Local Rule 7-9(b) provides

"Whether or not to

Navajo Nation v. Confederated Tribes and Bands of the

As Centex moves for reconsideration of a summary judgment

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order, the Court also employs the legal standard set forth in

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Federal Rule of Civil Procedure 56.

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proper "if the movant shows that there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a

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Entry of summary judgment is

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matter of law."

Fed. R. Civ. P. 56(a).

Summary judgment should be

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granted if the evidence would require a directed verdict for the

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moving party.

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(1986).

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. . against a party who fails to make a showing sufficient to

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establish the existence of an element essential to that party's

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case, and on which that party will bear the burden of proof at

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trial."

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evidence of the nonmovant is to be believed, and all justifiable

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251

Thus, "Rule 56[] mandates the entry of summary judgment .

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

United States District Court

For the Northern District of California

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inferences are to be drawn in his favor."

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"The

Anderson, 477 U.S. at

255.

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IV.

DISCUSSION

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As discussed above, the Court granted Centex leave to file a

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motion for reconsideration concerning Traveler's right to control

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the defense of the Garvey and Adkins actions.

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filed by Centex goes further.

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motion for reconsideration of the Court's decision regarding the

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Acupan and Conner actions.

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declines to reconsider its decision regarding the Garvey, Adkins,

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Acupan, and Conner actions, Centex asks the Court to certify the

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April 2013 Order for interlocutory appeal.

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A.

However, the motion

Centex also seeks leave to file a

Further, in the event that the Court

Motion for Reconsideration Re: Centex's Right to Control
the Defense of the Garvey and Adkins Actions

"[A] liability insurer owes a broad duty to defend its insured

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against claims that create a potential for indemnity."

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Ins. Co. v. Barbara B., 4 Cal. 4th 1076, 1081 (Cal. 1993).

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duty is "immediate," "arising on tender of defense and lasting

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Horace Mann
The

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until the underlying lawsuit is concluded or until it has been

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shown that there is no potential for coverage."

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Corp. v. Sup. Ct., 6 Cal. 4th 287, 295 (Cal. 1993) (internal

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citations omitted).

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it generally has the absolute right to manage the defense, and the

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insured is required to surrender all control.

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of Am. v. Sup. Ct., 71 Cal. App. 4th 782, 787 (Cal. Ct. App. 1999).

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However, "[w]hen an insurer wrongfully refuses to defend, the

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insured is relieved of his or her obligation to allow the insurer

Montrose Chem.

Once the insurer takes on the duty to defend,

See Safeco Ins. Co.

United States District Court

For the Northern District of California

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to manage the litigation and may proceed in whatever manner is

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deemed appropriate."

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196 (Cal. Ct. App. 1997).

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Eigner v. Worthington, 57 Cal. App. 4th 188,

The issue raised by Travelers' handling of the Garvey and

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Adkins actions is whether an insurer can ever regain control over

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its insured defense after it initially refuses to provide coverage.

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Centex contends that the answer to this question is controlled by

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J.R. Marketing, which was decided after the April 2013 Order, as

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well as Stalberg v. Western Title Insurance Co., 230 Cal. App. 3d

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1223 (Cal. Ct. App. 1991).

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Marketing and Stalberg, the authority cited by Travelers is not

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persuasive.

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1.

The Court agrees.

In light of J.R.

J.R. Marketing

In J.R. Marketing, the defendant insurer refused to defend or

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indemnify the plaintiff insured in an underlying lawsuit.

216 Cal.

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App. 4th at 1449.

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L.L.P. ("Squire") to defend it in the underlying action and bring

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suit against the insurer for coverage.

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reconsidered its position and agreed to provide the insured with a

The insured hired the law firm of Squire Sanders

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Id.

The insurer then

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defense, but the insurer refused to pay defense costs incurred

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prior to a certain date and insisted that its own counsel represent

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the insured in place of Squire, the insured's chosen Cumis

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counsel.1

Id.

On summary adjudication, the trial court found that the

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insured was entitled to Cumis counsel from the date it tendered the

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underlying action and that the insurer could not invoke the

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provisions of California Civil Code section 2860 that cap the

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amount of fees payable to Cumis counsel.

Id. at 1449-50.

The

United States District Court

For the Northern District of California

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trial court found that section 2860's protections were unavailable

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since the insurer had breached and continued to breach its defense

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obligations by failing to pay all reasonable and necessary defense

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costs incurred by the insured, and by failing to provide Cumis

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counsel.

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"Where, as here, the insurer breaches its duty to defend the

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insured, the insurer loses all right to control the defense,

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including, necessarily, the right to control financial decisions

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such as the rate paid to independent counsel or the cost-

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effectiveness of any particular defense tactic or approach."

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at 1457.

Id. at 1450.

The Court of Appeal affirmed, reasoning:

Id.

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Centex argues that J.R. Marketing shows that an insurer's

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breach of its duty to defend leads to a forfeiture of its right to

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control the insured's defense.

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that J.R. Marketing is distinguishable, because, in that case, the

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court found the insurer had a duty to defend, whereas here, the

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Court denied Centex's motion for partial summary judgment on the

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Mot. at 22.

Travelers responds

In California, an insured is entitled to independent counsel,
a.k.a. Cumis counsel, where a conflict exists because of an
insurer's control over the litigation. See Cal. Civ. Code § 2860.

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issue of whether Travelers had a duty to defend Centex in any of

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the underlying cases.

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that it has a right to control Centex's defense, even though it

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purportedly does not owe Centex any defense obligations.

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this framework, Centex cannot control its defense in the Garvey and

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Adkins actions, but Centex is still on the hook for any damages and

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defense costs arising out of those actions.

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it both ways.

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denial of the Garvey and Adkins tenders was wrongful and resulted

Opp'n at 23-24.

Thus, Travelers maintains

Under

Travelers cannot have

If Travelers does have a duty to defend, then its

United States District Court

For the Northern District of California

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in a forfeiture of its right to control the defense of those

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actions.

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it is unclear why Travelers is trying to provide Centex with a

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defense and control its appointment of counsel.

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Alternatively, if Travelers has no duty to defend Centex,

Travelers also argues that even if Centex establishes that

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Travelers had a duty to defend Centex as of the date of Travelers'

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denial letters, Centex has not shown that the denials were

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wrongful, unreasonable, or in bad faith.

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wrongfulness, the undisputed facts show that, prior to the initial

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denials, Centex provided Travelers with requested information

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regarding the Garvey and Adkins actions.

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owe a duty to defend with respect to those actions, then it must

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have erred in initially denying Centex's tenders.

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need not establish that the denials were unreasonable or in bad

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faith.

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sufficient to trigger a forfeiture of the insurer's rights to

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manage the insured's defense.

Opp'n at 21.

As to

Thus, if Travelers does

Moreover, Centex

Under J.R. Marketing, a breach of the duty to defend is

See 216 Cal. App. 4th at 1457.

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Next, Travelers argues that J.R. Marketing is inapposite

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because the breach in that case turned on the insured's failure to

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provide Cumis counsel and to pay all reasonable and necessary

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defense costs.

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Court has already found that Centex is not entitled to Cumis

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counsel here, and Travelers has agreed to pay all reasonable and

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necessary defense costs.

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Nothing in J.R. Marketing suggests that certain breaches of the

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duty to defend result in a forfeit of an insurer's rights while

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others do not.

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opinion in broad terms, stating that the insurer forfeited its

Opp'n at 24.

In contrast, contends Travelers, the

Id.

This argument is also unavailing.

In fact, the J.R. Marketing court couched its

United States District Court

For the Northern District of California

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rights under section 2860 by "fail[ing] to meet its duty to defend

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and accept tender of the defense in the [underlying] matter."

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Cal. App. 4th at 1455.

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216

Finally, Travelers argues that J.R. Marketing is

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distinguishable because, in that case, the insurer did not try to

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cure its forfeiture, whereas here, Travelers purportedly agreed to

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pay all reasonable and necessary defense costs when it ultimately

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accepted the Centex's tenders.

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J.R. Marketing eventually agreed to provide coverage.

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Marketing, 216 Cal. App. 4th at 1449-50.

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upheld the trial court's decision to reject the insurer's argument

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"that once an insurer breaches its duty to defend by refusing to

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provide Cumis counsel, when that insurer is later ordered to

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provide Cumis counsel, and continues to refuse the order, but later

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agrees to provide that counsel, it can unilaterally take advantage

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of the rate limitation provision of Section 2860."

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While there was no intervening court order in the instant action,

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Travelers did not agree to provide coverage until after Centex

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filed a suit for coverage.

Opp'n at 24.

But the insurer in
J.R.

The appellate court

Id. at 1451.

Moreover, about a year elapsed between

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the dates Centex tendered the Garvey and Adkins actions and the

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dates Travelers agreed to provide coverage for those actions.

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a delay, coupled with Travelers' initial denials, surely

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constitutes a breach of the immediate duty to defend.
2.

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6

Such

Stalberg

The court in J.R. Marketing relied in part on Stalberg, which

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also supports Centex's position.

In Stalberg, the plaintiff

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landowners filed a quiet title action, and tendered the litigation

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to their insurer.

230 Cal. App. 3d at 1228.

The insurer, Western,

United States District Court

For the Northern District of California

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agreed to pay half the costs and attorney's fees incurred in the

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action.

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decision in the underlying quiet title action, Western refused to

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pay their attorney's fees unless the plaintiffs stayed with the

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Warburton firm, the law firm that had represented them at trial.

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Id. at 1229.

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next, but the insureds ultimately sued Western for breach of the

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duty to defend.

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holding: "When Western refused plaintiffs' tender of their appeal

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in the [underlying] action, it breached the contract.

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wrongfully denied a defense, it gave up the right to control the

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litigation and could not insist that plaintiffs use the Warburton

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firm in order for Western to cover attorney's fees on appeal."

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at 1233.

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investigated before deciding to pay only half the attorney fees and

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costs incurred in the lower court proceedings and rejecting the

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insured's request for attorney's fees for the appeal.

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Id.

When the plaintiffs appealed the trial court's

The Stalberg opinion is not clear on what happened

The appellate court found for the insureds,

Once Western

Id.

The Court also found that Western had not adequately

Id.

Travelers' attempts to distinguish Stalberg are unavailing.
First, Travelers argues that, unlike in Stalberg, there has been no

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determination that Travelers had a duty to defend Centex in the

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Garvey and Adkins actions.

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argument is unpersuasive as it is predicated on a framework that

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puts the insured in an impossible position.

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argues that the instant action is distinct because Travelers

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ultimately agreed to defend Centex while the Garvey and Adkins

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actions were still ongoing.

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agreed to fund its insured's case in the trial court, and attempted

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to intervene while its insureds' appeal was pending.

However, as discussed above, this

Second, Travelers

However, the insurer in Stalberg also

As in the

United States District Court

For the Northern District of California

10

instant action, the insurer in Stalberg insisted that the insured

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use a particular law firm.

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court found that the insurer had forfeited its right to do so by

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breaching its duty to defend.

230 Cal. App. 3d at 1233.

The Stalberg

See id.

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Together, Stalberg and J.R. Marketing support the conclusion

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that an insurer may not control the defense of its insured, which

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includes controlling the selection of counsel, after the insurer

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breaches its duty to defend.
3.

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Travelers' Authority

Travelers once again relies on Chase for the proposition that

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an insurer cannot forfeit a contractual right absent a showing of

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bad faith.

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insurer had lost its right to compel arbitration because its

23

communications with the insured did not mention the arbitration

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provision in the parties' insurance contract.

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1148.

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contractual right to arbitration under theories of waiver,

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forfeiture, or estoppel, and that forfeiture applied where an

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insurer "engage[ed] in bad faith conduct designed to mislead the

Opp'n at 16-17.

The issue in Chase was whether an

42 Cal. App. 4th at

The court found that an insurer could only lose a

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insured."

Id.

In its April 2013 Order, the Court found that

2

"while the Chase court was primarily concerned with an arbitration

3

clause, its holding has broader implications," at least with

4

respect to an insurer's duty to defend.

5

However, since J.R. Marketing and Stalberg directly address

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breaches of the duty to defend and enunciate a different rule with

7

respect to forfeiture, that finding was in error.

Apr. 2013 Order 15.

Travelers also argues that Karsant Family Limited Partnership

8

United States District Court

v. Allstate Insurance Co., C 08-01490 SI, 2009 WL 188036 (N.D. Cal.

10
For the Northern District of California

9

Jan. 27, 2009), shows that an insurer can cure a breach of the duty

11

to defend where it later agrees to assume the insured's defense.

12

Opp'n at 20.

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in accepting an insured's defense did not preclude it from invoking

14

the attorney rate protections afforded by California Civil Code §

15

2860.

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with J.R. Marketing, which was decided years later.

17

since the Court now sits in diversity, J.R. Marketing is binding,

18

while Karsant is not.

19

In Karsant, this Court held that an insurer's delay

2009 WL 188036, at *5.

Karsant is arguably inconsistent
In any event,

Nor is Petersen v. Hartell, 40 Cal. 3d 102 (Cal. 1985),

20

controlling or persuasive in the insurance context.

21

concerned whether a vendee was entitled to completion of

22

performance on a land sale contract where it had willfully

23

defaulted in making payments after having paid a substantial part

24

of the purchase price.

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the vendee retained an absolute right to redeem the property by

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paying the entire balance of the price and any other amounts due.

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Id. at 114.

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not the sale of land, the equitable principles and policy

Id. at 105-06.

That case

The court concluded that

As the instant action concerns an insurance contract,

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rationales considered in Petersen have little relevance here.
4.

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Conclusion as to the Garvey and Adkins Actions

In sum, the Court does not find persuasive Chase, Karsant,

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Petersen, and the other authority cited by Travelers.

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Marketing and Stalberg are more on point, and they indicate that an

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insurer forfeits its right to control an insured's defense when the

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insurer breaches the duty to defend.

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for reconsideration is GRANTED.

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forfeited its right to control the defense of the Garvey and Adkins

United States District Court

For the Northern District of California

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Accordingly, Centex's motion

The Court finds that Travelers

actions.
B.

Motion for Leave to File Motion for Reconsideration Re:
the Acupan and Connor Actions

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13

J.R.

Centex requests leave to file a motion for reconsideration of

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the April 2013 Order as that order relates to Travelers' right to

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control the defense of the Acupan and Conner actions.

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Traveler's argument, Centex's request is not procedurally improper.

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Pursuant to Civil Local Rule 7-9, a party is permitted to seek

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leave to file a motion for reconsideration, which is exactly what

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Centex has done here.

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and the similarities between the Garvey, Adkins, Acupan, and Conner

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actions, Centex's motion for leave is GRANTED.

Contrary to

In light of the authority discussed above

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C.

Motion for Certification of Interlocutory Appeal

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Centex alternatively moves the Court to certify its May 2012

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Order for interlocutory appeal.

As the Court has granted Centex's

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motion for reconsideration regarding the Garvey and Adkins actions,

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and has also granted Centex leave to file a motion for

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reconsideration regarding the Acupan and Connor actions, see

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Sections IV.A-B supra, Centex's motion for interlocutory appeal is

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DENIED as moot.

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4

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS Centex's motion

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for reconsideration, and finds that Travelers forfeited its right

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to control the defense of the Garvey and Adkins actions.

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motion for leave to file a motion for reconsideration as to the

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Acupan and Conner actions is also GRANTED.

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certification of an interlocutory appeal is DENIED as moot.

Centex's

Centex's motion for

United States District Court

For the Northern District of California

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IT IS SO ORDERED.

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Dated: August 21, 2013
UNITED STATES DISTRICT JUDGE

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