                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 23 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CENTURY SURETY COMPANY, an                       No. 07-56615
Ohio corporation,
                                                 D.C. No. CV-05-01548-MJL
             Plaintiff-counter-defendant -
Appellee,
                                                 MEMORANDUM *
  v.

JACQUELINE HELLEIS, individually
and doing business as Flagship Research,

             Defendant,

 and

350 W.A., LLC, a California limited
liability company,

             Defendant-counter-claimant -
Appellant.



CENTURY SURETY COMPANY, an                       No. 09-55205
Ohio corporation,
                                                 D.C. No. 3:05-cv-01548-L-LSP
             Plaintiff-counter-defendant -
Appellee,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

350 W.A., LLC, a California limited
liability company,

             Defendant-counter-claimant -
Appellant,

DAVID A. BLACKBURN,

    Counter-claimant - Appellant,

and

JACQUELINE HELLEIS, individually
and doing business as Flagship Research,

             Defendant.



                  Appeal from the United States District Court
                     for the Southern District of California
                M. James Lorenz, Senior District Judge, Presiding

                     Argued and Submitted February 3, 2010
                              Pasadena, California

Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.

       This is an appeal by 350 W.A., LLC (“350”) from the entry of summary

judgment in favor of Century Surety Company (“Century”) in Century’s action for

a declaratory judgment that a commercial insurance policy it issued to 350 as

owner of a commercial office building did not provide coverage for the wrongful


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eviction of one of the tenants. The tenant, Jacqueline Helleis d.b.a. Flagship

Research, had obtained a sizable judgement against 350 for the wrongful eviction.

California law applies.

      We reverse the summary judgment on coverage and hold that under the

relevant provision of the policy, where coverage was provided for wrongful

eviction of “premises that a person occupies,” there was coverage for the wrongful

eviction of this tenant, who was a person occupying the premises. Century

attempts to rely on Mirpad, LLC v. California Insurance Guarantee Association,

34 Cal. Rptr. 3d 136 (Ct. App. 2005), to suggest that a business is not a “person”

within the meaning of the policy provision, even though the entity evicted in this

case was an individual doing business in the commercial building insured under

the policy. See Pinkerton’s, Inc. v. Superior Court, 57 Cal. Rptr. 2d 356, 358 (Ct.

App. 1996); Providence Washington Ins. Co. v. Valley Forge Ins. Co., 50 Cal.

Rptr. 2d 192, 194 (Ct. App. 1996). Mirpad involved an eviction of a corporation

and did not cover the situation presented in this case. See Mirpad, 34 Cal. Rptr. 3d

at 144.

      We also reject Century’s alternative contention that the general exclusion of

breach of contract injury swallows the specific coverage for wrongful eviction

injury. See Medill v. Westport Ins. Corp., 49 Cal. Rptr. 3d 570, 579-80 (Ct. App.


                                          3
2006). Additionally, we reject Century’s argument that 350’s late tender

substantially prejudiced Century. See Northwestern Title Sec. Co. v. Flack, 85 Cal.

Rptr. 693, 696 (Ct. App. 1970).

      Appellant 350 also appeals from the entry of the stipulated judgment

enforcing the terms of the bond agreement requiring 350 to provide collateral for

the appeal bond in the wrongful eviction appeal in state court. The judgment was

in accordance with the parties’ agreement that contemplated entry of the judgment

if 350 was not able to substitute collateral for the bond. 350 failed to demonstrate

why the agreement should not be enforced. The district court’s entry of the

stipulated judgment is affirmed.

      AFFIRMED in part and REVERSED in part and REMANDED. Costs

will be awarded to 350 W.A., LLC.




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