Desalegn v. Century Surety Company
Filing
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ORDER by Judge James Donato granting 38 Motion to Dismiss. Amended complaint due by 10/6/2017. (jdlc3S, COURT STAFF) (Filed on 9/15/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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GASHAW DESALEGN,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 3:15-cv-05678-JD
ORDER RE MOTION TO DISMISS
AMENDED COMPLAINT
v.
CENTURY SURETY COMPANY,
Re: Dkt. No. 36
Defendant.
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As the Court found when it dismissed the original complaint with leave to amend, Dkt. No.
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35, Plaintiff Gashaw Desalegn failed to state a plausible claim for recovery from Century Surety
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Company (“Century”) for two reasons. Desalegn’s judgment against the insured was “predicated
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on the finding that an assault and battery by [Shashamene] Lounge security guards caused his
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injuries.” Id. at 2. But “any damages caused by or related to assault or battery” are excluded from
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coverage under the Century policy. Id. And even assuming, purely for discussion, that Century’s
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policy covered injuries arising out of the use of reasonable force in defense of person or property,
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“Desalegn was the victim of a horrific attack, and so the potential for reasonable force that
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allowed Beach Eatery [36 F. Supp. 3d 1026 (E.D. Wash. 2014)] to go forward simply is not
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present here.” Id. at 3.
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These same considerations mandate dismissal of the amended complaint. Desalegn has
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changed the factual allegations to suggest that he triggered the attack by lunging at the security
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guards. Dkt. No. 36 at 3-4. Desalegn contends that this made the resultant assault and battery
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against him an incident of “reasonable force” that is covered under defendant’s liability policy.
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See id. at 6-7; Dkt. No. 36-1 at 42
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2(a).
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This argument is not well taken. Insurance policies are contracts, and their terms are
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interpreted in the context of the policy as a whole to give effect to the parties’ intent as expressed
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in the policy’s words. Liberty Mut. Fire Ins. Co. v. Shaibaz S., No. 15-CV-03943-JD, 2017 WL
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2118312, at *2 (N.D. Cal. May 16, 2017). As the plain language of the liability policy makes
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clear, the parties here intended to exclude from coverage any bodily injury “arising out of or
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resulting from: (a) any actual, threatened or alleged assault or battery,” including any actual or
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alleged injury arising out of “any combination of an assault or battery-related cause and a non-
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assault or battery-related cause.” Dkt. No. 36-1 at 75. Under this clear language, how and why
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the assault and battery occurred are of no moment; coverage is exclude for any injury arising out
or relating to assault and battery, even if they are the fruit of alleged self defense. See also
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United States District Court
Northern District of California
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Century Transit Systems, Inc. v. American Empire Surplus Lines Ins. Co., 42 Cal. App. 4th 121,
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129-30 and n.8 (Cal. Ct. App. 1996) (finding no coverage under very similar policy terms).
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While that is enough to dismiss the amended complaint, the Court also notes that judicial
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estoppel calls Desalegn’s amendments into serious doubt. “Judicial estoppel is an equitable
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doctrine that precludes a party from gaining an advantage by asserting one position, and then later
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seeking an advantage by taking a clearly inconsistent position.” Kobold v. Good Samaritan Reg’l
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Med. Ctr., 832 F.3d 1024, 1044-45 (9th Cir. 2016). As Desalegn acknowledges, he successfully
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argued to the Superior Court, over the insured’s claim of self defense, that the security guards
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assaulted and battered him. See Dkt. No. 36 at 4 (noting that the owner of the lounge raised self-
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defense to the Superior Court). The Superior Court expressly found that the security guards did in
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fact assault and batter Desalegn, and intentionally inflicted emotional distress on him. Dkt. No.
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16-1 at 32. Desalegn is ill positioned to switch gears now to say that the security guards’ conduct
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was merely the exercise of reasonable force.
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Desalegn has now had two opportunities to state a plausible coverage claim, and the Court
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would be well within its discretion to dismiss the case with prejudice. Won v. Fed. Nat’l Mortg.
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Ass’n, No. 3:16-CV-01337-JD, 2016 WL 6822068, at *2 (N.D. Cal. Nov. 18, 2016). However,
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Desalegn may have one final opportunity to amend in a manner consistent with the judgment he
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obtained in state court and this Court’s dismissal orders. Any amended complaint must be filed by
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October 6, 2017.
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IT IS SO ORDERED.
Dated: September 15, 2017
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JAMES DONATO
United States District Judge
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United States District Court
Northern District of California
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