                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUDY BAMBERGER,                                  No.   16-55252

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-06041-MWF-MAN
 v.

MARSH USA, INC., DBA Marsh Risk                  MEMORANDUM*
and Insurance Services,

              Defendant,

  and

NATIONAL UNION FIRE INSURANCE
COMPANY, a Corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                      Argued and Submitted October 6, 2017
                              Pasadena, California

Before: KLEINFELD, GRABER, and CHRISTEN, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Plaintiff-Appellant Judy Bamberger appeals from district court orders

granting partial summary judgment, and entry of final judgment following a bench

trial, in favor of Defendant-Appellee National Union Fire Insurance Company. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review de novo an order granting partial summary judgment.

Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1142 (9th Cir.

2002). “Following a bench trial, we review the district court’s findings of fact for

clear error and its conclusions of law de novo.” Id. “We may affirm for any

reason supported by the record.” Travelers Prop. Cas. Co. of Am. v.

ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008).

      1. We affirm summary judgment on Bamberger’s contract claim.

Bamberger has no extant contract damages because National Union reimbursed

Bamberger for her out-of-pocket contribution to the Moradi settlement, plus

interest. Bamberger’s contract damages do not include the amount her excess

insurer contributed to the Moradi settlement. See Pan Pac. Retail Props., Inc. v.

Gulf Ins. Co., 471 F.3d 961, 973–74 (9th Cir. 2006). Emotional distress damages

are generally unavailable in contract actions, Applied Equip. Corp. v. Litton Saudi

Arabia Ltd., 869 P.2d 454, 460 (Cal. 1994), and Bamberger cites no authority

beyond a single outlier case for the proposition that insurance contract actions fall


                                           2
outside the general rule. See Crisci v. Sec. Ins. Co. of New Haven, 426 P.2d 173,

179 (Cal. 1967) (permitting emotional distress damages for breach of an insurance

contract where “the breach also constitute[d] a tort”).

      2. We affirm partial summary judgment on Bamberger’s bad faith claim for

the period between National Union’s learning of the Moradi action and the state

trial court’s granting Marsh’s motion for summary judgment. During that period,

National Union owed Bamberger no duty to defend. See Cal. Ins. Code

§ 11580.9(d); Signal Cos. v. Harbor Ins. Co., 612 P.2d 889, 894 (Cal. 1980).

National Union did not impermissibly favor Marsh over Bamberger; Bamberger

herself initially denied that she was acting as anyone’s agent or employee at the

time of the accident. National Union breached no recognized disclosure obligation

because National Union disclosed the existence of the policy to Bamberger and her

lawyers, and Bamberger did not show that National Union was on notice that she

was unaware she was a potential insured. See Sarchett v. Blue Shield of Cal., 729

P.2d 267, 276 (Cal. 1987) (recognizing a disclosure obligation “[o]nce it becomes

clear to the insurer that its insured” is ignorant of his or her rights under the

policy). Finally, even if National Union breached a duty to Bamberger, she

suffered no compensable harm because her primary insurer provided a defense and

she opposed Marsh’s motion for summary judgment in the state trial court.


                                            3
      3. We also affirm partial summary judgment on Bamberger’s bad faith

claim for the period between the state trial court’s granting Marsh’s motion for

summary judgment and the Moradi appeal’s becoming final. National Union could

reasonably rely on the summary judgment ruling to justify its subsequent non-

contribution to the Moradi settlement. See Fillipo Indus., Inc. v. Sun Ins. Co. of

N.Y., 88 Cal. Rptr. 2d 881, 888 (Ct. App. 1999) (stating that “the reasonableness of

the insurer’s decision must be evaluated as of the time it was made”).

      4. Finally, we affirm the district court’s judgment following the bench trial

on Bamberger’s bad faith claim for the period after the Moradi appeal became

final. The district court applied the correct legal standard and it did not clearly err

in finding that National Union “simply did not commit a ‘conscious and deliberate

act’ to frustrate Bamberger’s contractual rights.” See Chateau Chamberay

Homeowners Ass’n v. Associated Int’l Ins. Co., 108 Cal. Rptr. 2d 776, 783 (Ct.

App. 2001) (requiring “a conscious and deliberate act” rather than “an honest

mistake, bad judgment or negligence” to support liability for bad faith (quoting

Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 272 Cal. Rptr. 387, 399–400 (Ct. App.

1990))). That judgment also precludes punitive damages.

      AFFIRMED.




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