                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 01 2011

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




                           FOR THE NINTH CIRCUIT



GREENWICH INSURANCE                              No. 09-56347
COMPANY, a Delaware corporation,
                                                 D.C. No. 2:08-cv-00937-CAS-CT
              Plaintiff–Appellee,

INDIAN HARBOR INSURANCE                          MEMORANDUM *
COMPANY, a Delaware corporation

              Counter-defendant–Appellee.


  v.

MEDIA BREAKAWAY, LLC, a Nevada
limited liability company; and SCOTT
RICHTER, an individual,

              Defendants–Appellants,




                    Appeal from the United States District Court
                       for the Central District of California
                     Christina Snyder, District Judge, Presiding

                     Argued and Submitted February 16, 2011
                              Pasadena, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD, LUCERO,** and GRABER, Circuit Judges.

      The parties are familiar with the facts of this case, which we will not recite.

      We need not reach the propriety of the district court’s conclusion that the

arbitration award was entitled to collateral estoppel effect. Regardless of whether

full preclusion applies, the award and the underlying complaint provide a sufficient

record to determine if summary judgment was appropriate. See Horace Mann Ins.

Co. v. Barbara B., 846 P.2d 792, 795-96 (Cal. 1993) (determination as to the duty

to defend usually may be made based on a comparison of the terms of the policy

and the allegations in the underlying complaint).

      Greenwich had neither a duty to defend nor a duty to indemnify Media

Breakaway or Richter. Greenwich’s policy contained two broadly worded

exclusions precluding coverage of intentional conduct or conduct resulting in ill-

gotten profits. All allegations in the MySpace complaint, and all findings of

liability in the arbitration award, involved intentional conduct and wrongful




       **
            The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.

                                          2
profits.1 Neither the complaint nor the award suggests “any potential for liability

under the policy.” Horace Mann, 846 P.2d at 797. Likewise, the Indian Harbor

policy was subject to similar exclusions and did not provide coverage. We

therefore need not reach the question of whether California Insurance Code section

533 barred coverage.

      Because the MySpace action did not give rise to a duty to defend, Greenwich

and Indian Harbor are entitled to reimbursement based on reservations of rights in

the Greenwich policy and Indian Harbor correspondence. See Scottsdale Ins. Co.

v. MV Transp., 115 P.3d 460, 467 (Cal. 2005).

      AFFIRMED.




      1
             Although the district court opined that the award made “some passing
reference to some conduct that could be considered negligent,” we review the grant
of summary judgment de novo, see Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.
2000) (en banc), and conclude the award involved no covered conduct.

                                          3
