                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 25 2012

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




                            FOR THE NINTH CIRCUIT



NEILL W. KOHLHASE; JILL                          No. 11-55138
KOHLHASE,
                                                 D.C. No. 8:10-cv-01470-JST-FFM
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

SAFECO INSURANCE COMPANY OF
AMERICA,

              Defendant - Appellee.

                    Appeal from the United States District Court
                        for the Central District of California
                 Josephine Staton Tucker, District Judge, Presiding

                        Argued and Submitted May 9, 2012
                              Pasadena, California

Before: NOONAN and FISHER, Circuit Judges, and GRITZNER, Chief District
Judge.**

       Appellants Neill Kohlhase and Jill Kohlhase filed this lawsuit under

California Insurance Code section 11580(b)(2), seeking to collect from Appellee


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James E. Gritzner, Chief United States District Judge
for the Southern District of Iowa, sitting by designation.
Safeco Insurance Company of America a judgment obtained against Kristy Pittman

in a state court personal injury lawsuit. The state court action arose when a pit bull

kept at 129 Esplanade Street, in San Clemente, California, property then covered

by a Safeco insurance policy, escaped and mauled Neill Kohlhase. The policy

insuring the Esplanade home provided liability coverage to the named insured,

Judith Thomas, and to family members that were “residents of your household.”

The district court granted summary judgment on behalf of Safeco finding that

“household” unambiguously applied to Thomas’ residence, 179 North Garfield

Place, in Monrovia, California, thereby precluding from liability coverage Pittman,

Thomas’ daughter, who resided at the Esplanade home. The Kohlhases appealed,

contending that “your household” was ambiguous and could reasonably be

interpreted to mean the household at the insured location. We have jurisdiction to

review under 28 U.S.C. § 1291. We hold that Pittman was not covered by the

insurance policy and accordingly affirm the district court.

      Because this suit was brought in a California state court and removed to

federal court based on diversity of citizenship jurisdiction, it is subject to

California law. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1163 (9th Cir. 1995).

Under California law, “[i]nterpretation of an insurance policy is a question of law

and follows the general rules of contract interpretation.” TRB Invs., Inc. v.


                                            2
Fireman’s Fund Ins. Co., 145 P.3d 472, 476 (Cal. 2006) (internal quotation marks

and citation omitted). “The California Supreme Court has established a three-step

process for analyzing insurance contracts with the primary aim of giving effect to

the mutual intent of the parties.” K F Dairies, Inc. & Affiliates v. Fireman’s Fund

Ins. Co. (In re K F Dairies, Inc. & Affiliates), 224 F.3d 922, 925 (9th Cir. 2000)

(citing AIU Ins. Co. v. Superior Court, 799 P.2d 1253, 1264-65 (Cal. 1990)). “The

first step is to examine the ‘clear and explicit’ meanings of the terms as used in

their ‘ordinary and popular sense.’” Id. (quoting AIU Ins., 799 P.2d at 1264). “If

contractual language is clear and explicit, it governs.” Minkler v. Safeco Ins. Co.

of Am., 232 P.3d 612, 616 (Cal. 2010) (internal quotation marks and citation

omitted).

      The district court properly applied the generally adopted definition of

household found in Jacobs v. Fire Insurance Exchange, 278 Cal. Rptr. 52 (Ct.

App. 1991), which provides that under California law a household “includes family

members and others, whether related or not, who live together under one head,”

and requires that “the persons live together, be it in the same house or under one

roof or at least within one curtilage.” Id. at 57 (internal quotation marks and

citation omitted). Contrary to the Kohlhases’ assertion, the inclusion of the term




                                           3
“your,” which the policy explicitly defines to refer to Thomas and her spouse, does

not serve to vary the generally accepted, clear, and explicit meaning of household.

      Under California’s definition of household Pittman is plainly not a resident

of Thomas’ household. Thomas crafted the insurance policy to protect her

investment in the Esplanade home by including rental insurance coverage, but

excluded personal property and additional living expense coverage, which refutes

any claim that the policy indicates that Thomas considered the Esplanade home to

be her household. Further, the record demonstrates that the activities of Pittman

and Thomas were not those of one household, as Thomas resided miles away,

maintained no personal room at the Esplanade home, and visited infrequently and

only after giving notice to Pittman of her intended arrival. Thomas herself referred

to the Esplanade home as Pittman’s separate household. See Jacobs, 278 Cal.

Rptr. at 59-60 (holding that the tortfeasor was not part of the insured’s household,

though they lived in separate units of a duplex owned by the insured, when the

insured considered the households at issue to be separate and the tortfeasor and the

insured did not share meals and had limited interaction).

      Thomas resided at all relevant times at 179 North Garfield Place, a home in

which Pittman has never lived. Because Pittman was not part of Thomas’

household, she was not covered under the homeowner’s policy. Therefore, the


                                          4
Kohlhases were not entitled to collect from Safeco the judgment obtained against

Pittman, and the grant of summary judgment was proper.

      AFFIRMED.




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