Electronically FILED by Superior Court of California, County of Los Angeles on 08/11/2021 02:45 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk

1 Jodi K. Swick No. 228634

John T. Burnite No. 162223
2 McDOWELL HETHERINGTON LLP
1 Kaiser Plaza, Suite 340
3 Oakland, CA 94612
Telephone: 510.628.2145
4 Facsimile: 510.628.2146
Email: [email protected]
5 [email protected]

6 David T. McDowell Texas Bar No. 00791222*

McDOWELL HETHERINGTON LLP
7 1001 Fannin Street, Suite 2700
Houston, TX 77002
8 Telephone: 713.337.5580
Facsimile: 713.337.8850
9 Email: [email protected]
*Admitted Pro Hac Vice
10
Attorneys for Defendant and Cross-Complainant
11 FIREMAN’S FUND INSURANCE COMPANY
12

13 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

14 COUNTY OF LOS ANGELES

15

16 MICHAEL OVITZ, an individual, Case No. BC699174

17 Plaintiff, Assigned to the Hon. Maureen Duffy-Lewis

Dept. 38
18 v.
MEMORANDUM OF POINTS AND
19 FIREMAN’S FUND INSURANCE COMPANY, AUTHORITIES IN SUPPORT OF
a California corporation; and DOES 1 to 10, DEFENDANT FIREMAN’S FUND
20 inclusive, INSURANCE COMPANY’S THIRD
AMENDED MOTION FOR SUMMARY
21 Defendants. JUDGMENT OR, IN THE ALTERNATIVE,
FOR SUMMARY ADJUDICATION
22
Date: October 26, 2021
23 Time: 9:30 a.m.
Dept.: 38
24
AND RELATED CROSS-COMPLAINT
25 Complaint Filed: March 22, 2018
Cross-complaint Filed: May 9, 2018
26 Trial Date: January 24, 2021
27

28
Case No. BC699174
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 TABLE OF CONTENTS
Page
2 I. SUMMARY OF ARGUMENT .....................................................................................................1

3 II. THE MATERIAL FACTS ARE UNDISPUTED........................................................................1

4 A. Michael Ovitz’s Relationship with Anthony Pellicano .......................................................1

5 B. Fireman’s Fund Issued Excess Insurance to Ovitz and AMG .............................................2

6 C. The Fireman’s Fund Policy Is Excess Over AIG and Chubb Primary Policies...................3

7 D. Busch Sued Ovitz and Pellicano Solely for Intentional Acts and Punitive Damages .........4

8 E. Ovitz Delayed Ten Years in Notifying Fireman’s Fund About Busch’s Complaint ...........5

9 F. Fireman’s Fund’s Handled Ovitz’s Claim in Good Faith in the Ten Months Before
Ovitz’s Settlement with Busch.............................................................................................5
10
G. Ovitz Settled Busch’s Lawsuit against Him for Less than $13 Million, and
11 Fireman’s Fund Contributed $2 Million to the Settlement Under a Full Reservation
of Rights ...............................................................................................................................7
12
H. Fireman’s Fund Is Sued by Ovitz for Breach of Contract and Bad Faith, Despite Its
13 $2 Million Settlement Contribution Under a Reservation of Rights for Ovitz’s
Alleged Conspiracy with Pellicano to Harass Busch ...........................................................8
14
III. THE APPLICABLE LEGAL STANDARDS DEMONSTRATE SUMMARY
15 JUDGMENT CAN DISPOSE OF OVITZ’S CLAIMS ..............................................................8
16 A. Summary Judgment Must Be Granted When No Issue of Material Fact Exists ..................8
17 B. A Breach of Contract Claim May Be Resolved via Summary Judgment ............................9
18 C. A Bad Faith Claim May Be Resolved via Summary Judgment...........................................9
19 D. A Declaratory Relief Claim May Be Resolved via Summary Judgment.............................9
20 IV. ALL OF OVITZ’S CLAIMS ARE SUBJECT TO SUMMARY JUDGMENT .....................10
21 A. There Is No Breach of Contract Because All Conduct Alleged by Busch Is
Intentional and not Insurable Under California Law. ........................................................10
22
B. There Is No Breach of Contract Because All Conduct Alleged by Busch Is
23 Intentional and Not Accidental ..........................................................................................11
24 1. An “Occurrence” Is an Accident, Not an Intentional Act ......................................11
25 2. Busch’s Causes of Action against Ovitz Allege Intentional Torts Based on
Intentional Conduct ................................................................................................11
26
3. Busch Never Alleged a Theory of Negligence, and Ovitz Admitted as
27 Much ......................................................................................................................13
28

Case No. BC699174 i

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 TABLE OF CONTENTS (cont'd.)
Page
2 C. There Is No Breach of Contract because the Alleged Wiretapping of Busch Is Not
Oral or Written Publication of Material as Required under the Policy..............................16
3
D. The Primary Carriers Did Not Cover Busch’s Lawsuit .....................................................17
4
E. Fireman’s Fund Did Not Commit “Bad Faith” ..................................................................18
5
1. Policy Benefits Are Not Payable to Ovitz as a Matter of Law ..............................18
6
2. Alternatively, Ovitz’s “Bad Faith” Claim Is Barred by the Genuine Dispute
7 Doctrine..................................................................................................................18

8 F. Ovitz Cannot Prove an Entitlement to Punitive Damages Under California Law .............20

9 V. CONCLUSION ............................................................................................................................20
10

11

12

13

14

15

16

17

18

19
20

21

22

23

24

25

26

27

28

Case No. BC699174 ii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 TABLE OF AUTHORITIES

2 Page(s)

3 Cases

4 ACS Sys., Inc. v. St. Paul Fire & Marine Ins. Co.,
147 Cal.App.4th 137 (2007) ................................................................................................................17
5
Advent, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.,
6 6 Cal.App.5th 443 (2016) ......................................................................................................................2

7 Aetna Cas. & Surety Co. v. Superior Court,

19 Cal.App.4th 320 (1993) ..................................................................................................................10
8
Aguilar v. Atl. Richfield Co.,
9 25 Cal.4th 826 (2001) ............................................................................................................................9
10 Alessandro v. Mass. Cas. Ins. Co.,
232 Cal.App.2d 203 (1965) .................................................................................................................20
11
Allis–Chalmers Corp. v. City of Oxnard,
12 126 Cal.App.3d 814 (1981) ...................................................................................................................9
13 Ameron Int’l Corp. v. Ins. Co. of State of Pa.,
50 Cal.4th 1370 (2010) ..........................................................................................................................9
14
Applied Equip. Corp. v. Litton Saudi Arabia Ltd.,
15 7 Cal.4th 503 (1994) ............................................................................................................................13
16 Blue Ridge Ins. Co. v. Jacobsen,
25 Cal.4th 489 (2001) ..........................................................................................................................17
17
Buss v. Superior Court,
18 16 Cal.4th 35 (1997) ................................................................................................................... passim
19 Camelot by the Bay Condo. Owners’ Ass’n v. Scottsdale Ins. Co.,
27 Cal.App.4th 33 (1994) ......................................................................................................................2
20
Careau & Co. v. Sec. Pac. Bus. Credit, Inc.,
21 222 Cal.App.3d 1371 (1990) ...............................................................................................................19
22 Certain Underwriters at Lloyd's of London v. Superior Court,
24 Cal.4th 945 (2001) ..........................................................................................................................15
23
Chateau Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co.,
24 90 Cal.App.4th 335 (2001) ..............................................................................................................9, 19
25 Christensen v. Superior Court,
54 Cal.3d 868 (1991) .....................................................................................................................12, 13
26
City Prods. Corp. v. Globe Indem. Co.,
27 88 Cal.App.3d 31 (1979) .......................................................................................................................3
28
Case No. BC699174 iii
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Page(s)

2 Cases Cont'd.

3 Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co.,

14 Cal.App.4th 1595 (1993) ................................................................................................................14
4
Comm. on Children’s Television, Inc. v. Gen. Foods Corp.,
5 35 Cal.3d 197 (1983) ...........................................................................................................................13

6 Crab Boat Owners Ass’n v. Hartford Ins. Co. of the Midwest,

No. C03-05417 MHP, 2004 WL 2600455 (N.D. Cal. Nov. 15, 2004) ................................................15
7
Delgado v. Interinsurance Exch. of Auto. Club of S. Cal.,
8 47 Cal.4th 302 (2009) ....................................................................................................................10, 11

9 Dollinger DeAnza Assocs. v. Chicago Title Ins. Co.,

199 Cal.App.4th 1132 (2011) ..........................................................................................................9, 10
10
Dym v. Provident Life & Accident Ins. Co.,
11 19 F.Supp.2d 1147 (S.D. Cal. 1998) ....................................................................................................20
12 Everest & Jennings, Inc. v. Am. Motorists Ins. Co.,
23 F.3d 226 (9th Cir. 1994) ................................................................................................................17
13
Fireman’s Fund Ins. Co. v. City of Turlock,
14 170 Cal.App.3d 988 (1985) .................................................................................................................17
15 Fireman’s Fund Ins. Co. v. Sparks Constr., Inc.,
114 Cal.App.4th 1135 (2004) ..............................................................................................................13
16
First Commercial Mortg. Co. v. Reece,
17 89 Cal.App.4th 731 (2001) ....................................................................................................................9
18 Fraley v. Allstate Ins. Co.,
81 Cal.App.4th 1282 (2000) ................................................................................................................19
19
Gray v. Zurich Ins. Co.,
20 65 Cal.2d 263 (1966) .............................................................................................................................2
21 Guebara v. Allstate Ins. Co.,
237 F.3d 987 (9th Cir. 2001) ...............................................................................................................18
22
Guillon v. AMCO Ins. Co.,
23 No. 20-CV-07926-CRB, 2021 WL 254264 (N.D. Cal. Jan. 26, 2021) ....................................... passim
24 Havstad v. Fid. Nat’l Title Ins. Co.,
58 Cal.App.4th 654 (1997) ....................................................................................................................9
25
Horace Mann Ins. Co. v. Barbara B.,
26 61 Cal.App.4th 158 (1998) ..................................................................................................................10
27 Juge v. County of Sacramento,
12 Cal.App.4th 59 (1993) ......................................................................................................................8
28

Case No. BC699174 iv

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Page(s)

2 Cases Cont'd.

3 Kidron v. Movie Acquisition Corp.,

40 Cal.App.4th 1574 (1995) ................................................................................................................13
4
Liberty Surplus Ins. Corp. v. Ledesma & Meyer Constr.,
5 5 Cal.5th 216 (2018) ................................................................................................................15, 16, 19

6 Love v. Fire Ins. Exch.,

221 Cal.App.3d 1136 (1990) ...............................................................................................................19
7
Lunsford v. Am. Guarantee & Liab. Ins. Co.,
8 18 F.3d 653 (9th Cir. 1994) .................................................................................................................20

9 Manzarek v. St. Paul Fire & Marine Ins. Co.,

519 F.3d 1025 (9th Cir. 2008) .............................................................................................................18
10
Marie Y. v. Gen. Star Indem. Co.,
11 110 Cal.App.4th 928 (2003) ..................................................................................................................2
12 Maxon v. Sec. Ins. Co. of New Haven, Conn.,
214 Cal.App.2d 603 (1963) .................................................................................................................10
13
Merced Mut. Ins. Co. v. Mendez,
14 213 Cal.App.3d 41 (1989) ...................................................................................................................11
15 N. Am. Capacity Ins. Co. v. Claremont Liab. Ins. Co.,
177 Cal.App.4th 272 (2009) ..................................................................................................................2
16
Olympic Ins. Co. v. Emp’rs Surplus Lines Ins. Co.,
17 126 Cal.App.3d 593 (1981) ...................................................................................................................2
18 Palmer v. Truck Ins. Exch.,
21 Cal.4th 1109 (1999) .......................................................................................................................17
19
People v. Ray,
20 181 Cal.App.2d 64 (1960) ...................................................................................................................10
21 PMC, Inc. v. Saban Entm’t,
45 Cal.App.4th 579 (1996) ................................................................................................................8, 9
22
Potter v. Firestone Tire & Rubber Co.,
23 6 Cal.4th 965 (1993) ......................................................................................................................12, 13
24 Progressive W. Ins. Co. v. Superior Court,
135 Cal.App.4th 263 (2005) ................................................................................................................18
25
Quan v. Truck Ins. Exch.,
26 67 Cal.App.4th 583 (1998) ............................................................................................................11, 15
27 Ray v. Valley Forge Ins. Co.,
77 Cal.App.4th 109 (1999) ..................................................................................................................11
28

Case No. BC699174 v

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Page(s)

2 Cases Cont'd.

3 Rios v. Scottsdale Ins. Co.,

119 Cal.App.4th 1020 (2004) ................................................................................................................9
4
Safeco Ins. Co. of Am. v. Superior Court,
5 140 Cal.App.4th 874 (2006) ..................................................................................................................2

6 Schwartz v. Thiele,
242 Cal.App.2d 799 (1966) .................................................................................................................16
7
Shulman v. Grp. W Prods., Inc.,
8 18 Cal.4th 200 (1998) ..........................................................................................................................12

9 Silberg v. Cal. Life Ins. Co.,

11 Cal.3d 452 (1974) ...........................................................................................................................20
10
So v. Shin,
11 212 Cal.App.4th 652 (2013) ................................................................................................................12
12 Span, Inc. v. Associated Int’l Ins. Co.,
227 Cal.App.3d 463 (1991) ..................................................................................................................9
13
St. Paul Fire & Marine Ins. Co. v. Superior Court,
14 161 Cal.App.3d 1199 (1984) ...............................................................................................................11
15 State Farm Gen. Ins. Co. v. JT’s Frames, Inc.,
181 Cal.App.4th 429 (2010) ................................................................................................................16
16
Stewart v. Truck Ins. Exch.,
17 17 Cal.App.4th 468 (1993) ..................................................................................................................20
18 Tomaselli v. Transamerica Ins. Co.,
25 Cal.App.4th 1269 (1994) ................................................................................................................19
19
Tradewinds Escrow, Inc. v. Truck Ins. Exch.,
20 97 Cal.App.4th 704 (2002) ..................................................................................................................10
21 Waller v. Truck Ins. Exch., Inc.,
11 Cal.4th 1 (1995) ..............................................................................................................9, 11, 18, 20
22
Wyatt v. Union Mortg. Co.,
23 24 Cal.3d 773 (1979) ...........................................................................................................................13
24

25 Statutes and Rules

26 CAL. CIV. CODE § 3294 ..............................................................................................................................20

27 CAL. CIV. PROC. CODE § 437c ..................................................................................................................8, 9

28 CAL. EVID. CODE § 623 ..............................................................................................................................15

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Page(s)

2 Statutes and Rules, Cont'd.

3 CAL. INS. CODE § 533 ........................................................................................................................ passim

4 CAL. PENAL CODE § 632 ............................................................................................................................16

5 CAL. RULES OF COURT, RULE 3.1350...........................................................................................................9

7 Judicial Council of California Civil Jury Instructions (CACI)

8 CACI No. 1301 ..........................................................................................................................................12

9 CACI No. 1600 ..........................................................................................................................................12

10 CACI No. 1800 ..........................................................................................................................................12
11 CACI No. 3600 ..........................................................................................................................................13
12

13

14

15

16

17

18

19
20

21

22

23

24

25

26

27

28

Case No. BC699174 vii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 I. SUMMARY OF ARGUMENT

2 In 2007, Michael Ovitz and Anthony Pellicano were civilly sued for conspiring to commit

3 intentional acts that caused emotional harm to reporter Anita Busch. Ten years later, Ovitz demanded that

4 Fireman’s Fund Insurance Company, his excess insurance carrier, indemnify him for his settlement with

5 Busch. Fireman’s Fund correctly determined that the alleged intentional acts and conspiracy are not

6 insurable in California, as a matter of law and public policy, and are not covered under the terms of his

7 excess insurance policy. In sum, Ovitz’s and Pellicano’s alleged intentional acts and conspiracy to cause

8 emotional harm to Busch do not constitute an “occurrence” (defined as an accident), a prerequisite to

9 coverage. For this and other reasons discussed herein, Ovitz cannot prove that his and Pellicano’s alleged
10 acts are covered under his Fireman’s Fund excess policy. As a result, Fireman’s Fund is entitled to
11 summary judgment as a matter of law.
12 II. THE MATERIAL FACTS ARE UNDISPUTED

13 A. Michael Ovitz’s Relationship with Anthony Pellicano

14 The underlying civil action involved three key persons: Michael Ovitz, Anthony Pellicano, and

15 Anita Busch. In 2002, Pellicano was a high-profile “fixer” and private investigator in Los Angeles.

16 Pellicano was convicted and served a federal prison sentence for criminal acts perpetrated against Busch.

17 Ovitz was known in the entertainment industry. He became president of the Walt Disney Company in

18 1995 and launched Artist Management Group (“AMG”) in 1999. Due to financial issues, Ovitz sold

19 AMG in 2002.
20 Busch was a journalist. In Spring 2002, Busch published a series of articles in the New York

21 Times about Ovitz and the collapse of AMG. Def.’s Separate Statement of Uncontroverted Facts

22 (“SUF”) ⁋ 1. Ovitz deemed Busch’s articles “one of the lowest points” in his career. Ovitz paid Pellicano

23 $75,000 in cash and, when speaking with Pellicano about Busch, referred to his situation as “the single

24 most complex situation imaginable.” SUF ⁋ 2. As told by Busch, from Summer 2002 through Spring

25 2003, Ovitz and Pellicano intentionally and maliciously engaged in a scheme and course of conduct of

26 threats, intimidation, and harassment against her. SUF ⁋ 3. According to Busch, Ovitz and Pellicano

27 illegally conspired to (1) wiretap her telephones; (2) on June 20, 2002, smash her car windshield and

28 leave a dead fish, red rose, and note containing the word “STOP”; (3) on June 21, 2002, leave telephone
Case No. BC699174 1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 messages for her stating her car would blow up; (4) in July 2002, threaten her at her parent’s home; (5) in

2 August 2002, hack her computer; (6) on August 16, 2002, attempt to run her over with a car; and (7) in

3 March 2003, break into her car and drill a hole next to the driver-side windshield. SUF ⁋ 4.

4 B. Fireman’s Fund Issued Excess Insurance to Ovitz and AMG

5 Relevant here, in 2001, Fireman’s Fund issued excess insurance coverage to AMG and Ovitz.

6 SUF ⁋⁋ 5, 9, 11. Excess insurance is different from primary insurance. Primary insurers have a duty to

7 defend their insured. N. Am. Capacity Ins. Co. v. Claremont Liab. Ins. Co., 177 Cal.App.4th 272, 291

8 (2009). The legal standard for a “duty to defend” under a primary policy means the primary carrier “must

9 defend a suit which potentially seeks damages within the coverage of the policy.” Gray v. Zurich Ins.
10 Co., 65 Cal.2d 263, 275 (1966) (emphasis added). A primary carrier cannot make a coverage

11 determination when deciding whether it has a duty to defend. Buss v. Superior Court, 16 Cal.4th 35, 49

12 (1997). Also, when deciding whether to indemnify an insured, the primary insurer must indemnify for the

13 entire loss and cannot distinguish between covered and non-covered claims. Id. at 48.

14 In contrast, excess policies are secondary insurance policies that only provide indemnity for a

15 covered claim. When primary insurance is in place, an excess insurer does not have a duty to defend and

16 is not governed by the “potential for coverage” standard. Olympic Ins. Co. v. Emp’rs Surplus Lines Ins.

17 Co., 126 Cal.App.3d 593, 600 (1981). An excess insurer’s duty to indemnify only runs to claims actually

18 covered under the policy. Advent, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 6 Cal.App.5th 443,

19 454 (2016); Safeco Ins. Co. of Am. v. Superior Court, 140 Cal.App.4th 874, 880 (2006). When deciding
20 whether to indemnify the insured, an excess insurer may evaluate the facts and claims at issue, discern

21 between covered and non-covered claims, and indemnify those claims covered under the excess policy.

22 In short, an excess insurer “does not . . . insure the entire range of an insured’s well-being, outside the

23 scope of and unrelated to the insurance policy, with respect to paying third party claims. It is an insurer,

24 not a guardian angel.” Camelot by the Bay Condo. Owners’ Ass’n v. Scottsdale Ins. Co., 27 Cal.App.4th

25 33, 52 (1994). Furthermore, an excess insurer has no duty to accept even a reasonable settlement offer

26 with respect to non-covered claims. Marie Y. v. Gen. Star Indem. Co., 110 Cal.App.4th 928, 958–59

27 (2003) (refusing to impose duty on an insurer where there was no coverage for claims asserted against

28 insured).

Case No. BC699174 2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Moreover, an excess insurer may not indemnify for punitive damages, as it is intentional in nature

2 and not insurable under California law. City Prods. Corp. v. Globe Indem. Co., 88 Cal.App.3d 31, 35

3 (1979) (declining to adopt plaintiff’s theory that punitive damages award was based on vicarious liability

4 and holding indemnity for punitive damages award against employer was uninsurable as a matter of law).

5 C. The Fireman’s Fund Policy Is Excess Over AIG and Chubb Primary Policies

6 Fireman’s Fund’s excess policy, number XYZ-000-6848-4377 (the “Policy”), has a policy period

7 of November 23, 2001 to November 23, 2002, and a $30 million limit per occurrence and in the

8 aggregate. SUF ⁋ 5. The two relevant portions of the Policy are Coverage A and the CAPE (Commercial

9 And Personal Excess) supplement. Coverage A and the CAPE provide excess coverage to both AMG and
10 Ovitz. SUF ⁋ 6. The Policy is designed such that, if coverage exists under any one part (e.g., Coverage A

11 or the CAPE), then there is no coverage under any other part of the Policy. SUF ⁋ 7.

12 As demonstrated by the diagram below, Coverage A and the CAPE have different contractual

13 terms and are excess over two different primary insurance policies. Coverage A is excess insurance over

14 a Chubb primary insurance policy with a $1 million per occurrence limit. SUF ⁋⁋ 9–10. The CAPE is

15 excess insurance over an AIG primary policy with a $1 million per occurrence limit. SUF ⁋⁋ 8, 11.

16

17

18

19
20

21

22 As an excess policy, the Fireman’s Fund Policy, under both Coverage A and the CAPE, provides
23 coverage for bodily injury and property damage that arise from an “occurrence.” SUF ⁋ 12. Coverage A
24 incorporates the Chubb primary policy’s definition of “occurrence,” which defines an “occurrence” as an
25 “accident.” SUF ⁋⁋ 13–14. The CAPE similarly defines an “occurrence” as an “accident.” SUF ⁋ 15.
26 Accordingly, there can only be coverage for Busch’s alleged bodily injury or property damage if that
27 arose from accidental conduct, which did not happen here because all alleged acts were intentional.
28 Under both Coverage A and the CAPE, the Policy also covers “personal injury” (as opposed to
Case No. BC699174 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 bodily injury) “that arises out of an oral or written publication of material that violates a person’s right

2 of privacy.” SUF ⁋⁋ 16–17 (emphasis added). Again, the only “personal injury” covered must arise from

3 unintentional conduct, which is not what Busch alleged in her complaint.

4 As an excess policy, the Fireman’s Fund’s Policy, under both Coverage A and the CAPE, only

5 covers “those sums in excess of [the] Primary Insurance” that AMG or Ovitz “becomes legally obligated

6 to pay as damages,” provided that those damages “[a]re covered by [the] Primary Insurance.” SUF ⁋ 18

7 (emphasis added). Neither AIG nor Chubb agreed to cover the intentional acts alleged by Busch against

8 Ovitz. SUF ⁋ 19. At all times, the primary insurers acted and contributed under a full reservation of

9 rights, which does not equate with a favorable coverage determination. SUF ⁋ 20.
10 D. Busch Sued Ovitz and Pellicano Solely for Intentional Acts and Punitive Damages
11 In 2004, Busch sued Pellicano and numerous Doe defendants in an action styled Busch v.

12 Pellicano, et al., Case No. BC316318 in the Los Angeles County Superior Court. SUF ⁋ 21. Busch

13 named Ovitz as a Doe defendant two years later. SUF ⁋ 22. In her First Amended Complaint, dated

14 November 25, 2008, Busch sued Ovitz for “intentionally and maliciously engaging in a scheme and

15 course of conduct of threats, intimidation, harassment and invasion of privacy for the purpose of

16 deterring, hindering, preventing and retaliating against Plaintiff ANITA BUSCH for investigating and

17 writing articles about the entertainment business.” SUF ⁋ 23. Importantly, Busch claimed Ovitz and

18 Pellicano conspired to wiretap her telephone lines, blow up her car, track her whereabouts, hack her

19 computer, break into her car, run her over, and smash her car windshield leaving a dead fish with a red
20 rose with a note that read “STOP.” SUF ⁋ 24. In addition, Busch alleged that “[t]he course of conduct

21 engaged in by defendants, and each of them [including Ovitz], [were] the direct threats on her life, the

22 assaults, intimidation and purposeful invasion of privacy and illegal wiretapping. . . .” SUF ⁋ 25. She

23 claimed that “[t]he conduct of defendants, and each of them [including Ovitz], was intentionally designed

24 to cause immediate harm and injury to [her].” SUF ⁋ 26. In her view, “[d]efendants . . . conspired to

25 cause and instill immediate fear and apprehension in [her],” and “defendants . . . as co-conspirators,

26 threatened to touch, harm and cause serious bodily injury to [her].” SUF ⁋ 27.

27 To be clear, the allegations made against Ovitz in Busch’s First Amended Complaint are based

28 only on intentional—not accidental—conduct. Busch alleged a conspiracy theory of liability against

Case No. BC699174 4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Ovitz in her complaint. SUF ⁋ 28. Busch did not allege negligent hiring against Ovitz based on his

2 $75,000 payment to Pellicano or that Pellicano was Ovitz’s employee (or agent). SUF ⁋ 29. Busch did

3 not allege negligent retention of an employee against Ovitz. SUF ⁋ 30. Busch did not allege a respondeat

4 superior theory of liability against Ovitz. SUF ⁋ 31. Busch did not allege an agency theory of vicarious

5 liability against Ovitz. SUF ⁋ 32.

6 Based on intentional acts alone, the First Amended Complaint, which was the operative complaint

7 at the time of Ovitz’s settlement with Busch, alleged causes of action against Ovitz for (1) intentional

8 infliction of emotional distress (“IIED”); (2) assault; (3) invasion of privacy; (4) violation of Penal Code

9 §§ 632 and 637.2; 1 and (5) violation of Business and Professions Code §§ 17200, et seq., and Busch
10 sought a punitive damages award against Ovitz as to her causes of action for IIED, assault, and invasion
11 of privacy. SUF ⁋ 33. Ovitz was added and served as a defendant to Busch’s lawsuit in 2007. SUF ⁋ 34.
12 E. Ovitz Delayed Ten Years in Notifying Fireman’s Fund About Busch’s Complaint
13 Eric George of Browne George Ross LLP, the same attorneys Ovitz is using in this coverage
14 action, first notified Fireman’s Fund of the conduct Busch alleged against Ovitz on April 10, 2017, ten
15 years after Ovitz was added as a defendant to Busch’s lawsuit. SUF ⁋ 35. This delay, by itself,
16 insinuates that Ovitz and his attorneys knew from day one that no insurance coverage existed for the
17 intentional and conspiratorial acts alleged against Ovitz. As described further below, Fireman’s Fund and
18 Ovitz’s attorneys subsequently engaged in communications regarding Busch’s lawsuit and related
19 coverage issues for ten months, from May 2017 to February 2018, when Ovitz then decided to abandon
20 his defense and enter into a settlement agreement with Busch for less than $13 million to avoid a
21 February 5, 2018 trial. SUF ⁋ 36.
22 F. Fireman’s Fund’s Handled Ovitz’s Claim in Good Faith in the Ten Months Before
23 Ovitz’s Settlement with Busch
24 On April 10, 2017, Eric George of Browne George Ross LLP sent a letter to Fireman’s Fund,
25 enclosing Busch’s complaint. SUF ⁋ 35. George’s letter referenced the Policy’s CAPE and identified
26 AIG as the relevant primary insurer. The letter also listed an upcoming November 13, 2017 trial date.
27 SUF ⁋ 37. Upon receipt, Fireman’s Fund immediately noted that it had not been previously notified of
28
1
This cause of action was dismissed on statute of limitation grounds.
Case No. BC699174 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 the alleged loss. SUF ⁋ 38. Fireman’s Fund (by Carol Driscoll) analyzed the April 10, 2017 letter from

2 Ovitz’s counsel and called George to discuss the matter. SUF ⁋ 39. After Driscoll left a voicemail for

3 George, Ira Bibbero, another of Ovitz’s attorneys, returned Driscoll’s call. SUF ⁋ 40. In their

4 conversation, Driscoll asked Bibbero, “what has been happening for the past 15 years” and informed him

5 that the Policy requires prompt notice. SUF ⁋ 41.

6 On April 18, 2017, Fireman’s Fund received (from Ovitz’s counsel) a copy of an April 10, 2017

7 letter from AIG that informed Ovitz that AIG would defend him against the intentional claims by Busch

8 under a complete reservation of rights. SUF ⁋ 42. In its reservation of rights letter, AIG noted the

9 necessity of an “occurrence” (defined as an “accident”) for coverage. SUF ⁋ 43. AIG’s letter also
10 discussed the many intentional acts alleged by Busch against Ovitz that fell outside of coverage, as well
11 as the requirement for prompt notice of a claim. SUF ⁋ 44.
12 On April 28, 2017, Driscoll considered Ovitz’s April 7, 2017 mediation brief, which Ovitz’s
13 counsel had provided to her. SUF ⁋ 45. She noted that the mediation brief explained the reasons “why the
14 problems [Busch] had with defendant Pellicano have nothing to do with our insured [Ovitz].” SUF ⁋ 46.
15 She also considered various Policy provisions and scheduled a call with Bibbero and George for the same
16 day, which they later cancelled. SUF ⁋ 47.
17 Driscoll and Ovitz’s counsel next spoke on May 3, 2017. During this call, Ovitz’s counsel
18 requested that Fireman’s Fund participate in a mediation already in progress. SUF ⁋ 48. Driscoll
19 conveyed a willingness to speak with the mediator with the understanding that “no coverage
20 determination” for indemnity had been made. SUF ⁋ 49.
21 On May 9, 2017, Fireman’s Fund sent an eleven-page letter to George. SUF ⁋ 50. The
22 comprehensive correspondence discussed allegations of the First Amended Complaint and the CAPE’s
23 relevant terms (due to the defense being provided by Ovitz’s primary insurer, AIG). SUF ⁋ 51. This letter
24 specifically identified the seven alleged threats and assaults directed at Busch. SUF ⁋ 52. Fireman’s Fund
25 also identified pertinent Policy terms, including the requirement and definition of an “occurrence.” SUF
26 ⁋ 53. However, since an “occurrence” is defined as an accident and Busch only alleged that Ovitz acted
27 at all times with the specific intent to harm her, Fireman’s Fund reserved the right to deny coverage
28 for injury not resulting from an “occurrence.” SUF ⁋ 54. Finally, Fireman’s Fund expressed its

Case No. BC699174 6

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 willingness to consider any additional information, analysis, or documents from Ovitz relating to any

2 potential coverage for the claims made against him. SUF ⁋ 55.

3 In mid-May 2017, Fireman’s Fund learned that Ovitz’s counsel had notified a second primary

4 carrier, Chubb, of Busch’s lawsuit. SUF ⁋ 56. After additional correspondence between Fireman’s Fund

5 and Ovitz’s counsel, coverage counsel for Fireman’s Fund sent a letter, dated July 21, 2017, to Ovitz’s

6 counsel to address the case issues. Among the salient points raised, Fireman’s Fund explained that

7 numerous Policy provisions appeared likely to bar indemnity for Busch’s claims against Ovitz. SUF ⁋ 57.

8 Furthermore, with respect to Ovitz’s request for Fireman’s Fund’s participation in mediation and

9 contribution to settlement efforts, Ovitz communicated that Busch had never made a settlement demand
10 in the matter and that Ovitz claimed that he should not even have been named as a defendant by Busch.
11 SUF ⁋ 58. In response, Fireman’s Fund reiterated its willingness to discuss the possibility of settling
12 Busch’s lawsuit against Ovitz. SUF ⁋ 58. Yet, at that time, no settlement demand was communicated to
13 Fireman’s Fund. Still, Fireman’s Fund continued to make efforts to get up to speed on ten years of
14 litigation and requested an electronic copy of the documents, depositions, motions, and pleadings from
15 Busch’s lawsuit.
16 On September 12, 2017, Ovitz conveyed to Fireman’s Fund a $13 million settlement demand
17 from Busch. SUF ⁋ 59. Given that the entirety of Busch’s allegations against Ovitz involved intentional
18 conduct only, between September 2017 and February 2018, Fireman’s Fund and Ovitz engaged in
19 extensive communications regarding coverage under the Policy and related settlement issues. SUF ⁋ 60.
20 One such letter, dated December 8, 2017, Ovitz’s counsel communicated Busch’s continued demand of
21 $13 million to settle her claims against Ovitz. SUF ⁋ 61.
22 G. Ovitz Settled Busch’s Lawsuit against Him for Less than $13 Million, and Fireman’s
23 Fund Contributed $2 Million to the Settlement Under a Full Reservation of Rights
24 Ovitz ultimately settled with Busch for less than $13 million in January 2018, approximately ten
25 days before his February 5, 2018 trial date. SUF ⁋ 62. AIG and Chubb each contributed their $1 million
26 occurrence limit under a full reservation of rights. SUF ⁋ 63. After a diligent investigation and also under
27 a full reservation of rights, Fireman’s Fund generously contributed $2 million to Ovitz’s settlement with
28 Busch and reserved its right to seek reimbursement of its settlement contribution as permitted under Buss

Case No. BC699174 7

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 v. Superior Court, 16 Cal.4th 35 (1997). SUF ⁋ 64. Fireman’s Fund was not a party to Ovitz’s settlement

2 agreement with Busch. SUF ⁋ 65.

3 H. Fireman’s Fund Is Sued by Ovitz for Breach of Contract and Bad Faith, Despite Its

4 $2 Million Settlement Contribution Under a Reservation of Rights for Ovitz’s

5 Alleged Conspiracy with Pellicano to Harass Busch

6 On March 22, 2018, Ovitz filed his complaint in this action. Ovitz alleges Fireman’s Fund

7 breached the Policy by failing to indemnify him for the remaining $7.75 million that he agreed to pay

8 Busch that was not paid for by AIG’s, Chubb’s, or Fireman’s Fund’s respective settlement contributions

9 under a full and complete reservation of rights. Despite notifying Fireman’s Fund of Busch’s lawsuit
10 against him ten years after he was sued, Ovitz also made a breach of the implied covenant of good faith
11 and fair dealing (“bad faith”) claim against Fireman’s Fund, alleging it acted intentionally and with
12 conscious and reckless disregard for Ovitz’s rights under the Policy and demanding an award of punitive
13 damages. Ovitz also seeks declaratory relief regarding the parties’ rights and obligations under the
14 Policy. On May 9, 2018, Fireman’s Fund filed its cross-complaint against Ovitz seeking recoupment of
15 the $2 million it contributed to Ovitz’s settlement of Busch’ lawsuit.
16 III. THE APPLICABLE LEGAL STANDARDS DEMONSTRATE SUMMARY JUDGMENT
17 CAN DISPOSE OF OVITZ’S CLAIMS
18 A. Summary Judgment Must Be Granted When No Issue of Material Fact Exists
19 A motion for summary judgment must be granted if there is no triable issue as to any material
20 fact. CIV. PROC. CODE § 437c(c). “It is in the public interest, including the court’s interest in the efficient
21 and economical administration of justice and the parties’ interest in the prompt and affordable resolution

22 of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to

23 judgment as a matter of law, without requiring protracted litigation and a trial on the matter.” Juge v.

24 County of Sacramento, 12 Cal.App.4th 59, 70 (1993).

25 Once the defendant has come forward with evidence that shows that one or more of the essential

26 elements of the plaintiff’s action cannot be established, the burden shifts to the plaintiff to show the

27 existence of a triable issue of material fact. PMC, Inc. v. Saban Entm’t, 45 Cal.App.4th 579, 590 (1996).

28 The plaintiff may not rely upon the mere allegations or denials of his pleadings to show that a

Case No. BC699174 8

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 triable issue of material facts exists, but, instead, shall set forth the specific facts showing that a triable

2 issue of material facts exists as to that cause of action or a defense thereto. PMC, 45 Cal.App.4th at 590;

3 see also Aguilar v. Atl. Richfield Co., 25 Cal.4th 826, 845, 851 (2001). A factual dispute will not

4 preclude entry of summary judgment on interpreting an insurance policy, unless that fact is material.

5 State Farm Fire & Cas. Co. v. Eddy, 218 Cal.App.3d 958, 965 (1990). A motion for summary

6 adjudication may be made as an alternative to summary judgment and proceeds in all procedural respects

7 as summary judgment motion. CIV. PROC. CODE § 437c(f)(2); CAL. RULES OF COURT, RULE 3.1350.

8 B. A Breach of Contract Claim May Be Resolved via Summary Judgment

9 A breach of contract cause of action may properly be resolved via summary judgment. Dollinger
10 DeAnza Assocs. v. Chicago Title Ins. Co., 199 Cal.App.4th 1132, 1156 (2011) (affirming summary
11 judgment where breach of contract claim lacked merit as a matter of law).
12 The availability of excess coverage may be resolved as a matter of law on summary judgment.
13 Span, Inc. v. Associated Int’l Ins. Co., 227 Cal.App.3d 463, 474 (1991). The interpretation of an
14 insurance policy is a question of law and reviewed under settled rules of contract interpretation.
15 Dollinger DeAnza Assocs., 199 Cal.App.4th at 1145. The clear and explicit meaning of the contract
16 provisions govern, interpreted in their ordinary and popular sense, and control judicial interpretation.
17 Ameron Int’l Corp. v. Ins. Co. of State of Pa., 50 Cal.4th 1370, 1378 (2010). The insured’s subjective
18 intentions regarding the coverage afforded by the policy are irrelevant in interpreting the policy. Havstad
19 v. Fid. Nat’l Title Ins. Co., 58 Cal.App.4th 654, 661 (1997) (purchaser’s expectations irrelevant where
20 insurance policy clearly did not cover claim).
21 C. A Bad Faith Claim May Be Resolved via Summary Judgment
22 A bad faith cause of action may properly be resolved via summary judgment. Chateau
23 Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co., 90 Cal.App.4th 335, 351 (2001). The
24 California Supreme Court has ruled that a claim for bad faith cannot be maintained unless benefits are
25 due under the plaintiff’s insurance policy. Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 36 (1995); see
26 also Rios v. Scottsdale Ins. Co., 119 Cal.App.4th 1020, 1027 (2004).
27 D. A Declaratory Relief Claim May Be Resolved via Summary Judgment
28 The court may properly grant summary judgment of a claim for declaratory relief. Allis–Chalmers

Case No. BC699174 9

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Corp. v. City of Oxnard, 126 Cal.App.3d 814, 818 n. 3 (1981). “[D]eclaratory relief does not lie in a case

2 in which a complaint makes no case on the merits and would merely produce a useless trial. [Citation.]”

3 Dollinger DeAnza Assocs., 199 Cal.App.4th at 1156 (quoting People v. Ray, 181 Cal.App.2d 64, 67

4 (1960)).

5 IV. ALL OF OVITZ’S CLAIMS ARE SUBJECT TO SUMMARY JUDGMENT

6 A. There Is No Breach of Contract Because All Conduct Alleged by Busch Is

7 Intentional and not Insurable Under California Law.

8 Under California law, willful conduct by an insured is not insurable. INS. CODE § 533. It is against

9 California public policy for an insurer to provide coverage for willful conduct. Aetna Cas. & Surety Co.
10 v. Superior Court, 19 Cal.App.4th 320, 323, 331 (1993); Maxon v. Sec. Ins. Co. of New Haven, Conn.,
11 214 Cal.App.2d 603, 615 (1963) (insurer cannot indemnify insured against liability for insured’s own
12 willful wrong). Insurance Code § 533 precludes indemnification, whether or not the insured subjectively
13 intended harm, if the insured seeks coverage for an intentional, wrongful act that is inherently and
14 necessarily harmful. See INS. CODE § 533; see also, e.g., Horace Mann Ins. Co. v. Barbara B., 61
15 Cal.App.4th 158, 167–68 (1998) (affirming insurer’s summary judgment, holding teacher’s sexual

16 misconduct against student was willfully harmful as inseparable from sexual molestation and thus

17 excluded from coverage).

18 Here, Busch’s First Amended Complaint alleged only intentional and willful wrongs committed

19 by Ovitz. Put differently, for Ovitz to face actual liability to Busch under her First Amended Complaint,
20 a jury would have had to find Ovitz guilty of intentional and willful conduct. Such intentional conduct is

21 not insurable as a matter of law. INS. CODE § 533; see also Guillon v. AMCO Ins. Co., No. 20-CV-

22 07926-CRB, 2021 WL 254264, at *5 (N.D. Cal. Jan. 26, 2021) (employer’s sexual harassment of

23 employees was not an “accident” within meaning of liability policy’s insuring clause defining covered

24 “occurrence” as an “accident”); Delgado v. Interinsurance Exch. of Auto. Club of S. Cal., 47 Cal.4th 302,

25 308–09 (2009) (assault and battery committed by insured were not an “accident” under same policy

26 terms); Tradewinds Escrow, Inc. v. Truck Ins. Exch., 97 Cal.App.4th 704, 714 (2002) (applying CGL

27 insurance policy’s intentional injury exclusion to agent’s alleged liability for IIED as result of alleged

28 failure to close escrow; automobile policy provided no liability coverage for insured’s allegedly

Case No. BC699174 10

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 intentional acts of threatening and defaming victim). Despite this well-established principle of California

2 law, ten years after being named as a defendant in Busch’s lawsuit, Ovitz demanded coverage under the

3 Policy for his willful acts. After being provided a defense by his primary insurance carriers, Ovitz

4 abandoned his defense mere days before trial and chose to settle with Busch for less than $13 million

5 dollars. In any event, Busch alleged only intentional and willful acts committed by Ovitz. Thus, no

6 coverage exists under the Fireman’s Fund excess Policy for Ovitz’s willful wrongs as a matter of law and

7 public policy.

8 B. There Is No Breach of Contract Because All Conduct Alleged by Busch Is

9 Intentional and Not Accidental

10 Here, Fireman’s Fund did not breach the Policy as a matter of law because the Policy covers an
11 “occurrence” (defined as an accident) and all acts alleged by Busch against Ovitz are intentional.
12 1. An “Occurrence” Is an Accident, Not an Intentional Act
13 The Policy provides coverage for an “occurrence.” An “occurrence” is defined in the Policy as an

14 “accident.” SUF ⁋⁋ 13–15. The Policy’s language controls the disposition of this matter. Buss, 16 Cal.4th

15 at 45; Waller, 11 Cal.4th at 18–19. None of the intentional and conspiratorial conduct alleged against

16 Ovitz remotely resembles an accident. An “accident” requires unintentional acts or conduct. Ray v.

17 Valley Forge Ins. Co., 77 Cal.App.4th 109, 1045 (1999). “Accidental” means “‘arising from extrinsic

18 causes[;] occurring unexpectedly or by chance[; or] happening without intent or through carelessness.’”

19 St. Paul Fire & Marine Ins. Co. v. Superior Court, 161 Cal.App.3d 1199, 1202 (1984). An accident
20 occurs when the event leading to the injury was “unintended by the insured and a matter of fortuity.”

21 Merced Mut. Ins. Co. v. Mendez, 213 Cal.App.3d 41, 50 (1989). Intentional acts are not accidents, even if

22 the intentional act causes unintended harm. Quan v. Truck Ins. Exch., 67 Cal.App.4th 583, 600 (1998);

23 see also Guillon v. AMCO Ins. Co., No. 20-CV-07926-CRB, 2021 WL 254264, at *5 (N.D. Cal. Jan. 26,

24 2021) (“Intentional conduct is no accident[.]”). Criminal acts, such as assault and conspiracy, constitute

25 intentional acts for which there is no insurance coverage. See Delgado, 47 Cal.4th at 308–09.

26 2. Busch’s Causes of Action against Ovitz Allege Intentional Torts Based on

27 Intentional Conduct

28 All claims alleged by Busch against Ovitz are intentional torts, including a conspiracy theory of

Case No. BC699174 11

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 liability. Since there is no occurrence (defined as an accident), there is no coverage under the Policy’s

2 terms. Again, for Ovitz to have incurred liability to Busch on any of her asserted claims, the conduct—

3 either his or Pellicano’s—must have been intentional (not negligent, not accidental).

4 Busch’s intentional infliction of emotional distress (“IIED”) claim against Ovitz alleged

5 intentional conduct, not accidental conduct. SUF ⁋ 33. Indeed, the requisite elements of IIED are:

6 (1) Ovitz’s extreme and outrageous conduct with the intent to cause emotional distress; (2) Busch

7 suffering severe or extreme emotional distress; and (3) actual and proximate causation of her emotional

8 distress by Ovitz’s outrageous conduct. See Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001

9 (1993); Christensen v. Superior Court, 54 Cal.3d 868, 903 (1991); see also CACI No. 1600. Under
10 Busch’s IIED claim, Ovitz “must have engaged in ‘conduct intended to inflict injury or engaged in with
11 the realization that injury will result.’ [Citation.]” Potter, 6 Cal.4th at 1013 (emphasis added) (quoting
12 Christensen, 54 Cal.3d at 903).
13 Busch’s assault claim against Ovitz alleged intentional conduct, not accidental conduct. SUF
14 ⁋ 33. Like IIED, assault is an intentional tort, and its requisite elements are: (1) Ovitz acted with the
15 intent to cause harmful contact or threatened to touch Busch in a harmful manner; (2) Busch reasonably
16 believed she was about to be touched in a harmful manner or it reasonably appeared to her that Ovitz was
17 about to carry out the threat; (3) Busch did not consent to Ovitz’s conduct; (4) Busch was harmed; and
18 (5) Ovitz’s conduct was a substantial factor in causing her harm. So v. Shin, 212 Cal.App.4th 652,
19 668−69 (2013); see also CACI No. 1301. Thus, a person who acts willfully is deemed to intend the
20 consequences of his acts. See So, 212 Cal.App.4th at 670–71.
21 Busch’s invasion of privacy claim against Ovitz alleged intentional conduct, not accidental
22 conduct. SUF ⁋ 33. Busch was required to prove at trial that Ovitz’s unconsented, physical, and
23 purposeful intrusion into her home and other places of privacy—such as unwarranted sensory intrusions
24 of eavesdropping, wiretapping, and visual or photographic spying—invaded her privacy. Shulman v. Grp.
25 W Prods., Inc., 18 Cal.4th 200, 230 (1998); see also CACI No. 1800.
26 Busch’s unfair business practice claim against Ovitz was based on the alleged intentional
27 conduct contained in her IIED, assault, and invasion of privacy claims, as is thus not insurable under
28 Insurance Code § 533. SUF ⁋ 33.

Case No. BC699174 12

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Busch’s theory of conspiracy alleged liability against Ovitz for Pellicano’s intentional torts. SUF

2 ⁋ 28; see Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 510–11 (1994); see also CACI

3 No. 3600. For conspiracy, knowledge of the planned tort must be combined with intent to aid in its

4 commission. Kidron v. Movie Acquisition Corp., 40 Cal.App.4th 1574, 1583 (1995). The essence of a

5 conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective

6 and their intent to aid in achieving that objective. Id. As long as two or more persons agree to perform a

7 wrongful act, the law places civil liability for the resulting damages on all of them, regardless of whether

8 they actually commit the tort themselves. Wyatt v. Union Mortg. Co., 24 Cal.3d 773, 784 (1979).

9 Busch’s punitive damage claim against Ovitz alleged intentional conduct with malice under
10 Civil Code § 3294 and is indisputably are not covered by the Policy and as a matter of law under
11 Insurance Code § 533.
12 3. Busch Never Alleged a Theory of Negligence, and Ovitz Admitted as Much
13 What is alleged against Ovitz by Busch in her lawsuit is as important as what is not alleged. Here,

14 Ovitz cannot cloak the actual claims made against him with a series of other possible theories or claims,

15 which Busch did not plead, to transform the intentional conduct and torts alleged against him into an

16 “accident.” For example, in his complaint against Fireman’s Fund in this action, Ovitz contends that

17 coverage is due to him based on vicarious liability for his negligent hiring or supervision of Pellicano.

18 Yet, Busch’s First Amended Complaint does not allege a theory of vicarious liability for negligent hiring

19 or any negligent conduct as to Ovitz. SUF ⁋⁋ 29–32. Rather, Busch alleges Pellicano was paid to engage
20 in a “scheme and course of conduct of threats, intimidation, harassment and invasion of privacy” to

21 support her intentional tort claims. SUF ⁋ 23. No claim of negligence was alleged against Ovitz, SUF

22 ⁋⁋ 29–32, even though Busch specifically alleged a negligence cause of action against other defendants.

23 No accidental conduct was alleged against Ovitz. It is hornbook law that Busch’s First Amended

24 Complaint frames and limits the issues in her lawsuit. Fireman’s Fund Ins. Co. v. Sparks Constr., Inc.,

25 114 Cal.App.4th 1135, 1148–49 (2004); Comm. on Children’s Television, Inc. v. Gen. Foods Corp., 35

26 Cal.3d 197, 211–12 (1983). Ovitz raised this same argument in the underlying action. SUF ⁋ 28; Swick

27 Decl. Ex. D, at 3, 5.

28 The Northern District of California, applying California law, squarely addressed the position

Case No. BC699174 13

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Ovitz takes here, and resoundingly rejected it by ordering a dismissal with prejudice. Guillon v. AMCO

2 Ins. Co., No. 20-CV-07926-CRB, 2021 WL 254264, at *5 (N.D. Cal. Jan. 26, 2021). In Guillon, former

3 employees sued a restaurant, its C.E.O./Director (“Guillon”), and another employee (“Karavas”) alleging

4 numerous claims, including sexual harassment, retaliation, and wrongful termination. Id. at *1.

5 Defendants sought coverage from their insurance policy which, in pertinent part, provided coverage only

6 for an “occurrence” (defined as an accident). Id. When the restaurant’s insurance carrier denied coverage,

7 Guillon sued the carrier for breach of contract and bad faith. Id. The case was removed to federal court,

8 and the insurer moved to dismiss.

9 In opposition, Guillon argued “that the Underlying Action attempted to hold him vicariously
10 liable for battery, making at least that injury an “occurrence” under the insurance policy, because the
11 alleged battery was committed by co-defendant Karavas, not Guillon. Id. at *5. The Court’s analysis was
12 controlled by the claims in the underlying lawsuit: “There is no dispute that the underlying complaint
13 alleged wrongdoing that was intentional and malicious.” Id. Rejecting Guillon’s argument that “only
14 Karavas engaged in conduct constituting battery,” the Court relied on the plural language in the
15 complaint, which alleged that “defendants committed the [battery] acts herein…with the wrongful
16 intention of injuring plaintiffs.” Id. The Court went even further, finding that even if the Underlying

17 Plaintiffs did attempt to hold Guillon vicariously liable, “it could not transform the alleged battery into an

18 ‘occurrence’ [defined as an accident].” Id. The court dismissed Guillon’s complaint with prejudice. Id.

19 Under California law, “just as we cannot allow insurers to recharacterize negligent conduct as
20 intentional, we cannot allow the insured to recast intentional conduct as merely negligent.” Coit Drapery

21 Cleaners, Inc. v. Sequoia Ins. Co., 14 Cal.App.4th 1595, 1609 (1993) (holding, in part, alleged sexual

22 harassment and wrongful termination to be intentional acts barred from coverage under expected or

23 intended bodily injury exclusion and Insurance Code § 533 barring imposition of liability on insurer for

24 loss caused by willful act of insured ). There is no coverage where the allegations against the insured

25 create “no credible argument that the alleged wrongful conduct could be anything other than intentional

26 and willful.” Id. The same is true here.

27 Indeed, Ovitz’s attorneys consistently maintained that the relevant theory by Busch was one of

28 conspiracy, not agency, and that the law of agency is different jurisprudence than the law of conspiracy.

Case No. BC699174 14

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 SUF ⁋ 28; Swick Decl. Ex. D. In short, Ovitz’s own argument in Busch’s lawsuit demonstrably proves

2 the propriety of Fireman’s Fund’s position on coverage in this matter. Ovitz cannot have it both ways.

3 Ovitz is now estopped from taking a contradictory position under Evidence Code § 623: “Whenever a

4 party has, by his own statement or conduct, intentionally and deliberately led another to believe a

5 particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement

6 or conduct, permitted to contradict it.” EVID. CODE § 623.

7 Moreover, Busch never sought leave to amend her pleadings to include a theory of vicarious

8 liability due to negligent hiring or any negligence theory against Ovitz, which she knew how to do as she

9 alleged negligent causes of action against other defendants. See Driscoll Decl. Ex. B, at 11. Courts have
10 rejected similar arguments and determined that, under a lower duty to defend standard, the insurance
11 carrier had no duty to defend its insured for an unpled negligence theory. See, e.g., Crab Boat Owners
12 Ass’n v. Hartford Ins. Co. of the Midwest, No. C03-05417 MHP, 2004 WL 2600455, at *4–5 (N.D. Cal.
13 Nov. 15, 2004) (finding insurer not obligated to defend insured under occurrence-based policy on a
14 theoretical, unpled negligence theory when all facts and causes of action were based on intentional and
15 conspiracy theories of liability); see also Quan, 67 Cal.App.4th at 599 (whether insured intended harm
16 that resulted from his conduct is not determinative; “The question is whether an accident gave rise to
17 claimant’s injuries. . . . No ‘additional, unexpected, independent and unforeseen happening’ produced the
18 alleged injuries.”). Thus, as an excess carrier, Fireman’s Fund had no obligation to indemnify Ovitz for
19 an unpled negligence theory. See Certain Underwriters at Lloyd's of London v. Superior Court, 24
20 Cal.4th 945, 958 (2001) (“[W]here there is no duty to defend, there cannot be a duty to indemnify.”

21 (citing Buss, supra, 16 Cal.4th at 47 n.10)).

22 Ovitz may argue Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction

23 (“Ledesma”), 5 Cal.5th 216 (2018), supports his position for coverage. It does not. The plaintiff in

24 Guillon made a similar argument and it was summarily dismissed by the district court. See Guillon, 2021

25 WL 254264, at *5. Of course, in Ledesma, the California Supreme Court determined that a cause of

26 action for negligent hiring or supervision of an employee against an employer could constitute an

27 “occurrence” (defined as an accident) when the employee’s intentional conduct caused harm to a third

28 person. However, the case is inapposite because the Court’s ruling was premised on the existence of a

Case No. BC699174 15

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 specific cause of action for negligent hiring and negligent supervision. Id. at 223–24. Ledesma

2 specifically distinguished cases cited below on the basis that they did not involve such an underlying

3 claim. Id. at 226. Busch made no such affirmative claim against Ovitz. Thus, Ledesma instead supports

4 that Busch’s intentional causes of action against Ovitz do not constitute an “occurrence.”

5 In short, there was no occurrence (or accident) because Busch only alleged intentional torts

6 against Ovitz based on intentional conduct, and, therefore, there is no coverage under the Policy. Thus,

7 Fireman’s Fund is entitled to summary judgment on Ovitz’s breach of contract claim.

8 C. There Is No Breach of Contract because the Alleged Wiretapping of Busch Is Not

9 Oral or Written Publication of Material as Required under the Policy

10 Busch’s intentional invasion of privacy cause of action against Ovitz is based on alleged unlawful
11 “wiretapping of [her] telephone lines.” As shown above, the alleged wiretapping was intentional conduct,
12 not an accident, and therefore not covered. See INS. CODE § 533. In fact, wiretapping is criminal conduct.
13 See PENAL CODE § 632. Second, the alleged wiretapping of Busch is not an “oral or written publication

14 of material,” as also required under the Policy. SUF ⁋⁋ 16–17. Per the applicable Policy terms, the Policy

15 covers “personal injury” that results from an “oral or written publication of material” that violates a right

16 to privacy. Put simply, none of Busch’s intentional causes of action allege any facts regarding (1) an oral

17 or written publication; (2) an oral or written publication of material; or (3) an oral or written publication

18 of material that violated a right of privacy.

19 Busch did not allege any facts supporting oral or written publication of material. SUF ⁋⁋ 5, 33,
20 61. First, the evidence shows that, at most, information learned from the alleged wiretapping was only

21 discussed between Ovitz and Pellicano. This does not constitute a publication. In the context of an

22 invasion of privacy tort, a “publication” requires “publicity in the sense of communication to the public

23 in general or to a large number of persons as distinguished from one individual or a few.” Schwartz v.

24 Thiele, 242 Cal.App.2d 799, 805 (1966). The undisputed lack of publication alone defeats coverage for

25 any “personal injury.”

26 Second, there is no evidence of any oral or written publication of material that violated Busch’s

27 right to privacy. Per the Policy, it is the content of the publication that violates the right to privacy, not

28 the mere act of disclosure. State Farm Gen. Ins. Co. v. JT’s Frames, Inc., 181 Cal.App.4th 429, 447

Case No. BC699174 16

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 (2010); ACS Sys., Inc. v. St. Paul Fire & Marine Ins. Co., 147 Cal.App.4th 137, 149 (2007) (“[M]aking

2 known written material is not enough to trigger coverage. Coverage requires an additional element, the

3 making known of ‘material’ that violates a person’s right of privacy. That is, the content of the ‘material’

4 violates someone’s right of privacy when that material is ‘made known’. . . . ‘[M]aking known’ implies

5 telling, sharing or otherwise divulging, such that the injured party is the one whose private material is

6 made known, not the one to whom the material is made known.”).

7 Busch did not allege, and there is no evidence to support, that any private or confidential material

8 about her was disseminated to anyone that violated her right of privacy. Busch merely claimed that the

9 act of wiretapping (not publication of any material) caused her damage. However, the wiretapping alone
10 is not a “publication of material.”
11 Finally, Ovitz may contend that the above definition of publication only applies to Busch’s

12 invasion of privacy tort claim and not to her constitutional claim that was also based on the alleged

13 wiretapping. However, as a matter of law, the Policy only covers tort claims and not constitutional

14 claims. See Fireman’s Fund Ins. Co. v. City of Turlock, 170 Cal.App.3d 988, 997 (1985) (analyzing a

15 Fireman’s Fund personal injury provision and finding “plain meaning of ‘violation of an individual’s

16 right of privacy’ includes only violations that incur tort liability”); see also Everest & Jennings, Inc. v.

17 Am. Motorists Ins. Co., 23 F.3d 226 (9th Cir. 1994) (Affirming that the personal injury provision of

18 policy did not trigger insurer’s duty to defend or indemnify because policy required “publication of

19 material that disparages a person’s or organizations goods and services.”).

20 For these reasons, the Policy does not cover the alleged wiretapping and intentional invasion of

21 privacy alleged by Busch under the Policy’s “personal injury” provision.

22 D. The Primary Carriers Did Not Cover Busch’s Lawsuit

23 An insurance contract’s terms govern. Palmer v. Truck Ins. Exch., 21 Cal.4th 1109, 1115 (1999).

24 As excess insurance, the Policy only provides indemnity for a claim that the underlying primary insurer

25 (here, AIG and Chubb) determined is covered under the primary policy. This did not happen here. AIG

26 and Chubb agreed to defend Ovitz under a reservation of rights and, ultimately, contributed to Ovitz’s

27 settlement with Busch under a full reservation of rights, including the right to recoupment of their

28 contributions. See Blue Ridge Ins. Co. v. Jacobsen, 25 Cal.4th 489, 498 (2001) (insurer can reserve its

Case No. BC699174 17

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 right to assert noncoverage unilaterally merely by giving notice to the insured and by accepting the

2 insurer’s defense under these circumstances, the insured is deemed to have accepted this condition).

3 The primary carriers reserved their rights because Busch’s intentional claims related to Ovitz’s

4 and Pellicano’s alleged conspiracy to harm her were not covered. See Buss, 16 Cal.4th at 60–61. Ovitz

5 wrongly contends that AIG and Chubb “accepted” coverage under their respective primary policies. AIG

6 and Chubb, like Fireman’s Fund, made claim determinations (and contributed to Ovitz’s settlement)

7 under a full reservation of rights, which does not equate to a favorable coverage determination.

8 E. Fireman’s Fund Did Not Commit “Bad Faith”

9 1. Policy Benefits Are Not Payable to Ovitz as a Matter of Law

10 Fireman’s Fund is entitled to summary judgment on the bad faith claim because Ovitz has failed
11 to succeed on his claim for breach of contract. See supra Sections IV.A–D. To maintain a bad faith
12 claim, Ovitz must prove the wrongful withholding of Policy benefits due. See, e.g., Progressive W. Ins.
13 Co. v. Superior Court, 135 Cal.App.4th 263, 279 (2005) (“[T]here is no cause of action for breach of the
14 covenant of good faith and fair dealing when no benefits are due.”); see also Manzarek v. St. Paul Fire &
15 Marine Ins. Co., 519 F.3d 1025, 1034 (9th Cir. 2008) (“[W]ithout a breach of the insurance contract,
16 there can be no breach of the implied covenant of good faith and fair dealing.” (citing Waller, 11 Cal.4th
17 at 36–37)). As explained above, Ovitz has not shown—and he cannot—that Fireman’s Fund breached the
18 Policy because he is not entitled to coverage under the Policy. As Fireman’s Fund did not wrongfully
19 withhold Policy benefits, this alone entitles it to summary judgment on the bad faith claim.
20 2. Alternatively, Ovitz’s “Bad Faith” Claim Is Barred by the Genuine Dispute
21 Doctrine
22 Fireman’s Fund’s coverage determination and handling of Ovitz’s claim were reasonable in light
23 of the parties’ genuine dispute as to coverage under the Policy for the intentional tort allegations in
24 Busch’s First Amended Complaint and Fireman’s Fund’s $2 million contribution to Ovitz’s less-than
25 $13 million settlement with Busch under a full reservation of rights.
26 “In order to establish a breach of the implied covenant of good faith and fair dealing under

27 California law, Plaintiff must show: (1) benefits due under the policy were withheld; and (2) the reason

28 for withholding benefits was unreasonable or without proper cause.” Guebara v. Allstate Ins. Co., 237

Case No. BC699174 18

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 F.3d 987, 992 (9th Cir. 2001) (emphasis added) (citing Love v. Fire Ins. Exch., 221 Cal.App.3d 1136,

2 1151 (1990)). To show that the reason for withholding benefits was unreasonable or without proper

3 cause, Ovitz must establish “‘a failure or refusal to discharge contractual responsibilities, prompted not

4 by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which

5 unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other

6 party thereby depriving that party of the benefits of the agreement.’” Chateau Chamberay Homeowners

7 Ass’n, 90 Cal.App.4th at 346 (quoting Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal.App.3d 1371,

8 1395 (1990). Moreover, even an erroneous denial of a claim cannot, by itself, give rise to a bad faith

9 claim. Id. at 346–47. Here, there is no evidence of the requisite conscious and deliberate act of Fireman’s
10 Fund to deprive Ovitz of Policy benefits.
11 In this case, Fireman’s Fund reasonably based its claims determination on the clearly intentional

12 theories and allegations of a conspiracy between Ovitz and Pellicano in Busch’s First Amended

13 Complaint. Ovitz’s subsequent attempt to mischaracterize and transform the intentional torts as threats of

14 vicarious liability also does not establish bad faith conduct. At the same time Fireman’s Fund was

15 making its claim determination, the Ninth Circuit realized that California law was not clear as to whether

16 a theory of vicarious liability based on a cause of action for negligent hiring (which was never alleged

17 by Busch against Ovitz) could be deemed an “occurrence” under a general liability insurance policy and

18 ultimately certified the question to the California Supreme Court for guidance. This alone supports the

19 application of the genuine dispute doctrine here. Indeed, the California Supreme Court’s response to the
20 Ninth Circuit was handed down six months after Fireman’s Fund’s settlement contribution under a full

21 reservation of rights. See generally Ledesma, supra, 5 Cal.5th 216 .

22 As to Ovitz, Fireman’s Fund made the correct claims determination. And, in good faith,

23 Fireman’s Fund generously contributed $2 million to assist Ovitz with the resolution of Busch’s

24 lawsuit—under a full reservation of rights. Even if this Court finds that Fireman’s Fund was mistaken, its

25 decision was reasonable and based on a legitimate dispute, and therefore cannot expose Fireman’s Fund

26 to bad faith liability. See Tomaselli v. Transamerica Ins. Co., 25 Cal.App.4th 1269, 1280–81 (1994). A

27 court “can conclude as a matter of law that an insurer’s denial of a claim is not unreasonable, so long as

28 there existed a genuine issue as to the insurer’s liability.” Fraley v. Allstate Ins. Co., 81 Cal.App.4th

Case No. BC699174 19

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 1282, 1292 (2000); see also Lunsford v. Am. Guarantee & Liab. Ins. Co., 18 F.3d 653, 656 (9th Cir.

2 1994); Dym v. Provident Life & Accident Ins. Co., 19 F.Supp.2d 1147, 1150–51 (S.D. Cal. 1998). This is

3 such a case, and the Court may conclude as a matter of law that Fireman’s Fund’s determination was

4 reasonable given the genuine dispute between the parties regarding the nature of Busch’s allegations.

5 Moreover, considering the ten-year delay in submitting the claim and the genuine dispute as to

6 coverage for Busch’s alleged intentional conduct, Fireman’s Fund reasonably handled the claim,

7 including its involvement in settlement efforts, in good faith, and payment of $2 million in settlement

8 albeit under an appropriate reservation of rights. This is not bad faith as a matter of California law.

9 F. Ovitz Cannot Prove an Entitlement to Punitive Damages Under California Law

10 Even if Ovitz could prove bad faith, this alone does not meet the standard for punitive damages.
11 Stewart v. Truck Ins. Exch., 17 Cal.App.4th 468, 471–72 (1993); Silberg v. Cal. Life Ins. Co., 11 Cal.3d
12 452, 457 (1974). First, he must prove entitlement to benefits, which, as shown above, he cannot do. See
13 Alessandro v. Mass. Cas. Ins. Co., 232 Cal.App.2d 203, 210 (1965). Second, he must prove an
14 intentional tort by Fireman’s Fund. See Waller, 11 Cal.4th at 35. Indeed, just the opposite occurred when
15 Fireman’s Fund contributed $2 million to Ovitz’s settlement with Busch—under a full reservation of
16 rights—where Busch’s claims against him alleged only intentional conduct that is not covered under the
17 Policy. Third, Ovitz cannot prove, by clear and convincing evidence, that Fireman’s Fund acted toward
18 him with the requisite malice, oppression, or fraud. CIV. CODE § 3294. Instead, Fireman’s Fund acted in
19 the utmost good faith toward its insured who was sued for allegedly conspiring with Pellicano and
20 “intentionally and maliciously engaging in a scheme and course of conduct of threats, intimidation,

21 harassment . . . for the purpose of deterring, hindering, preventing and retaliating” against Busch for

22 writing articles about him.

23 V. CONCLUSION

24 Fireman’s Fund respectfully requests that the Court grant the motion for summary judgment

25 based on presence of intentional conduct only and the absence of an “occurrence” or a “publication”

26 necessary for indemnity under the Policy. Alternatively, the Court should grant summary adjudication on

27 the breach of contract, bad faith and/or punitive damage claims, which lack merit as a matter of law.

28

Case No. BC699174 20

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.
 1 Dated: August 11, 2021 McDOWELL HETHERINGTON LLP
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3 Jodi K. Swick
4 David T. McDowell
John T. Burnite
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6 Attorneys for Defendant and Cross-Complainant

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Case No. BC699174 21

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIREMAN’S FUND INSURANCE
COMPANY’S THIRD AMENDED MOTION FOR SUMMARY JUDGMENT, ETC.