                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 05 2010

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

HEWLETT-PACKARD COMPANY, a                       No. 09-15880
corporation,
                                                 D.C. No. 5:07-cv-04676-JW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

ACE PROPERTY AND CASUALTY
INSURANCE COMPANY, a corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                     James Ware, District Judge, Presiding

                            Submitted April 13, 2010**
                             San Francisco, California

Before: KOZINSKI, Chief Judge, NOONAN and CALLAHAN, Circuit Judges.

       Hewlett Packard Company (“HP”) appeals the dismissal of its claim for bad

faith breach of the duty to defend against ACE Property and Casualty Insurance


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Company (“ACE”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and our

review is de novo. Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999).

         The two-year statute of limitations on HP’s claim was tolled until the

underlying action was terminated by final judgment. Lambert v. Commonwealth

Land Title Ins. Co., 811 P.2d 737, 739 (Cal. 1991). Here, judgment was entered in

the underlying action on April 5, 2000, and HP did not file its bad faith claim until

two years and twelve days after that date. Although ACE never unequivocally

rejected HP’s tender, the underlying action concluded without ACE undertaking

HP’s defense. Thus, there was no question that ACE had refused the defense, and

that the statute began to run on that date. Accordingly, HP’s claim was untimely

filed.

         HP is not entitled to further tolling of the statute since this case is governed

by Lambert rather than cases involving the more liberal tolling principles applied

in “several remedies” cases. See Daviton v. Columbia/HCA Healthcare Corp., 241

F.3d 1131, 1137-38 (9th Cir. 2001) (en banc) (explaining California’s test for

equitable tolling in “several remedies” cases).

         AFFIRMED.




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