Procentury Insurance v. A. Edward Ezor

FILED
NOT FOR PUBLICATION JAN 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROCENTURY INSURANCE No. 11-56779
COMPANY,
D.C. No. 2:10-cv-07293-PA-FFM
Plaintiff - Appellee,
v. MEMORANDUM*
A. EDWARD EZOR, DBA The Law
Offices of A. Edward Ezor,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted January 9, 2014
Pasadena, California
Before: TASHIMA, FISHER and CLIFTON, Circuit Judges.
A. Edward Ezor appeals from the judgment entered in favor of plaintiff
ProCentury Insurance Company. We affirm.
1. Ezor’s argument that ProCentury had a duty to defend him against the
Page Petition is foreclosed by the plain language of the policies and Westrec
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Marina Management, Inc. v. Arrowood Indemnity Co., 78 Cal. Rptr. 3d 264 (Ct.
App. 2008). Both the Brown and Page Petitions constitute claims made against
Ezor in September 2008 because they arose out of “related wrongful acts” that
shared a “common nexus” and the relationship between them was not “so
attenuated or unusual that an objectively reasonable insured could not have
expected they would be treated as a single claim under the policy.” Bay Cities
Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co., 855 P.2d 1263, 1265 (Cal.
1993). Ezor’s failure to report the Brown Petition therefore bars coverage for the
later-filed Page Petition. ProCentury was not obligated to defend Ezor against the
allegations of the Page Petition.
2. Neither waiver nor estoppel precludes ProCentury from denying coverage
for the Page Petition. First, waiver does not apply. Ezor points to no action (or
inaction) on ProCentury’s part that demonstrates an express or implied intentional
relinquishment of a known right. See Waller v. Truck Ins. Exch., Inc., 900 P.2d
619, 636 (Cal. 1995); Ringler Assoc. Inc. v. Md. Cas. Co., 96 Cal. Rptr. 2d 136,
154-55 (Ct. App. 2000).
Second, ProCentury is not estopped, because Ezor has not demonstrated how
he reasonably relied to his detriment on ProCentury’s provision of a defense. See
State Farm Fire & Cas. Co. v. Jioras, 29 Cal. Rptr. 2d 840, 844 (Ct. App. 1994);
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see also Waller, 900 P.2d at 638. He could not reasonably have expected that
ProCentury would never assert a coverage defense given the brief amount of time
that elapsed before it did so. Moreover, the majority of attorney’s fees were
incurred after Ezor knew ProCentury was withdrawing coverage shortly after the
conclusion of the first phase of trial in probate court, yet Ezor elected to proceed
with appointed defense counsel.
3. We decline to consider whether the district court erred in awarding the
entire amount of reimbursement ProCentury sought, because Ezor failed to
preserve this argument. See, e.g., Baccei v. United States, 632 F.3d 1140, 1149
(9th Cir. 2011). In response to ProCentury’s motion for summary judgment, Ezor
noted only that the amount of reimbursement was “undisputed at this time,”
although he purported to reserve his right to dispute the amount at a later date. He
proffered no evidentiary support for this reservation, and failed to make a proper
request to take further discovery on the fee issue, see Fed. R. Civ. P. 56(d), so
ProCentury’s claimed amount of reimbursement was established as an
uncontroverted fact by local rule, see C.D. Cal. Local Rule 56-3; see also Fed. R.
Civ. P. 56(e)(2). The district court did not abuse its discretion in amending the
judgment to incorporate the undisputed amount in full. See Fed. R. Civ. P. 59(e);
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011).
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4. The district court did not abuse its discretion in denying Ezor’s motion to
stay or dismiss the case. The probate court did not purport to adjudicate any
coverage issues when it denied appointed defense counsel’s motion to withdraw, so
there was no danger of inconsistent rulings. See Gov’t Emp. Ins. Co. v. Dizol, 133
F.3d 1220, 1225 (9th Cir. 1998) (en banc). Ezor has not pointed to any specific
prejudice he suffered from the denial of his motion to stay or dismiss. He was not
forced to litigate unfairly on two fronts because, by the time his motion was
denied, trial in the probate court had already concluded.
AFFIRMED.
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