                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 23 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SOUTHERN CALIFORNIA GAS                           No. 14-55306
COMPANY, a California corporation,
                                                  D.C. No. 3:08-cv-00941-BEN-
              Plaintiff-counter-defendant -       MDD
Appellee,

  v.                                              MEMORANDUM*

SYNTELLECT, INC.,

              Defendant-counter-claimant -
Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted December 15, 2014
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Syntellect, Inc. (Syntellect) appeals the district court’s grant of summary

judgment in favor of Southern California Gas Company (SoCal) apportioning

damages arising from third-party allegations of patent infringement (Katz claims)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
related to automated call-processing services provided by Syntellect (System).

Syntellect argues that the district court misinterpreted this court’s decision on

remand.

      Our decision in the prior appeal affirmed the district court’s determination of

liability and remanded for the district court to consider the issue of damages

allocation “in the first instance.” S. Cal. Gas Co. v. Syntellect, Inc., 534 Fed.

App’x 637, 638 (9th Cir. 2013). We held that Syntellect is liable for damages

“stemming from utilization of the ‘System’” and remanded for the district court to

consider the interplay between the nature of Katz claims and the scope of the

indemnity agreement, whether the indemnity agreement limited Syntellect’s

liability to its own actions only, and whether the settlement included more than the

indemnity obligation contemplated. See id. at 638-39.

      On remand, the district court complied with our mandate. The court

appropriately considered that the Katz claims accused SoCal of infringing on Katz

patents by offering automated call services, “in some instances in connection with

operators.” The district court permissibly interpreted the indemnity clause

language encompassing “any and all” damages, to conclude that no material issue

of fact regarding indemnity existed, and that the entire settlement amount arose

from and was connected to Syntellect’s infringement.


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      The district court’s decision is supported by its review of the evidence,

including the nature of the Katz claims, the types of calls included in the

settlement, and the expansive indemnity agreement. No material issue of fact was

raised regarding whether Syntellect’s indemnity obligation extends to all damages

included in the settlement. Cf. Peter Culley & Assocs. v. Superior Ct., 10 Cal.

App. 4th 1484, 1497 (1992) (holding that allocation of damages may be

appropriate if the contract limits the party’s indemnity obligation).

      AFFIRMED.




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