                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BARBARA KELLERER,                                No.     15-56653

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-00078-DDP-JEM
 v.

ALLIED PROPERTY AND CASUALTY                     MEMORANDUM*
INSURANCE COMPANY, Erroneously
Sued As Allied Property and Casualty
Insurance Company, a Nationwide
Company,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                             Submitted April 3, 2017**
                               Pasadena, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: BEA and OWENS, Circuit Judges, and CHHABRIA,*** District Judge.

      Barbara Kellerer appeals the district court’s grant of summary judgment in

favor of Allied Property and Casualty Insurance Company (“Allied”). Allied

declined to defend Kellerer against a claim brought by a day laborer, Pedro

Guzman, who sued Kellerer after he allegedly sustained an injury while working

on Kellerer’s property. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      1. Under California law, when an insured seeks declaratory relief that an

insurer owes her a duty to defend, “the insured must prove the existence of a

potential for coverage, while the insurer must establish the absence of any such

potential.” Montrose Chem. Corp. v. Super. Ct., 861 P.2d 1153, 1161 (Cal. 1993)

(emphasis omitted). Whether Guzman’s claim against Kellerer created a “potential

for coverage”—and thus a duty to defend Kellerer against Guzman’s claim—“is a

question which is not judged on the basis of hindsight but rather from all of the

information available to the insurer at the time of the tender of the defense.” B & E

Convalescent Ctr. v. State Comp. Ins. Fund, 9 Cal. Rptr. 2d 894, 903 (Ct. App.

1992). Kellerer did not submit information to Allied regarding Kellerer’s alleged



      ***
            The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.
                                          2
personal cash payments to Guzman for the work Kellerer claims Guzman did for

her until more than two years after Allied had declined to defend Kellerer against

Guzman’s claim.1 Therefore, the district court did not err when it refused to

consider the later-developed information concerning Kellerer’s alleged cash

payments to Guzman. Id.

      2. The district court also did not err in concluding that Guzman’s claim fell

within the “business pursuits” exclusion in Allied’s insurance policies.2 Based on

the information available to Allied at the time it denied coverage—that Guzman



      1
        In support of her motion for summary judgment, Kellerer filed declarations
in August and September of 2015, in which she stated that she personally paid
Guzman in cash on some days for the work Kellerer claims Guzman performed for
her. Kellerer also submitted a calendar that included a note regarding a $20 cash
payment to Guzman on the date of Guzman’s alleged injury. The district court
noted that the calendar submitted by Kellerer appeared to be the exact same
calendar submitted to Allied during Guzman’s proceedings before the Workers’
Compensation Appeals Board, except for the added note regarding the alleged $20
cash payment.
      2
         Kellerer’s homeowners insurance policy, which she purchased through
Allied, included the following “business pursuits” exclusion: “Coverages E
[Personal Liability] and F [Medical Payments to Others] do not apply to . . .
‘[b]odily injury’ or ‘property damage’ arising out of or in connection with a
‘business’ conducted from an ‘insured location’ or engaged in by an ‘insured’,
whether or not the ‘business’ is owned or operated by an ‘insured’ or employs an
‘insured.’” Kellerer’s umbrella liability insurance policy, also purchased through
Allied, contained the following provision: “The coverages provided by this policy
do not apply to . . . ‘[b]odily injury’, ‘personal injury’ or ‘property damage’ arising
out of or in connection with a ‘business’ engaged in by an ‘insured.’”
                                           3
was paid by the Our Children Their Future Foundation (the “Foundation”), and that

Kellerer hired Guzman to prepare Kellerer’s property for use by the

Foundation—no potential for coverage existed because Guzman’s claim arose “out

of or in connection with a ‘business’ conducted from an ‘insured location’ or

engaged in by an ‘insured’[.]”

      Guzman’s statement to Allied that he “think[s]” he made “somewhere

around [the] amount” of $3,000, “more or less,” even though the checks from the

Foundation totaled only $1,480, did not create a triable issue of fact as to whether

Guzman was hired by Kellerer, rather than the Foundation. Even if Guzman

received additional payments beyond what was documented by the copies of

Foundation checks Kellerer submitted to Allied, Kellerer told Allied that she paid

Guzman from the Foundation, and did not tell Allied that she personally paid

Guzman for any services. Allied established the absence of any potential for

coverage due to the “business pursuits” exclusion in the insurance policies.

Therefore, the district court properly granted Allied’s motion for summary

judgment. See Montrose, 861 P.2d at 1157.

      3. Allied did not concede the existence of any triable issues of fact that

would preclude summary judgment. In its opposition to Kellerer’s motion for

summary judgment, Allied argued that if the district court found triable issues of


                                          4
fact with regard to Allied’s duty to defend—and thus denied Allied’s motion for

summary judgment—the district court could not grant Kellerer’s motion for

summary judgment due to those triable issues of fact. Allied’s argument in the

alternative does not concede the existence of any triable issues of fact.

      AFFIRMED.




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