                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FEDERAL INSURANCE COMPANY, a                     No. 14-55078
corporation,
                                                 D.C. No. 2:13-cv-02196-RGK-
              Plaintiff - Appellant,             MAN

 v.
                                                 MEMORANDUM*
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA, a
corporation; CENTURY SURETY
COMPANY, a corporation,

            Defendants-cross-defendants-
cross-claimants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                      Argued and Submitted February 8, 2016
                               Pasadena, California

Before: KLEINFELD, McKEOWN, and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Federal Insurance Company appeals the district court’s decision granting

summary judgment to National Union Fire Insurance Company of Pittsburgh and

Century Surety Company. We have jurisdiction under 28 U.S.C. § 1291.

      Federal did not raise a genuine issue of material fact that the claims and

allegations asserted in the Department of Justice’s complaint against the Sterlings

(United States v. Donald Sterling, et al., No. 2:06-cv-04885-DSF (C.D. Cal. 2006))

(the Sterling complaint) gave rise to potential liability for a disparate impact or

negligence claim. The Sterling complaint did not allege discrimination arising

from a neutral practice. See Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive

Comtys. Project, Inc., 135 S. Ct. 2507, 2523 (2015). It did not allege negligent

supervision, failure to establish appropriate standards, or failure to exercise

sufficient control. Nor did facts extrinsic to the complaint that were known to

National Union and Century at the time the suit was tendered to the insurers give

rise to any such claim. See Scottsdale Ins. Co. v. MV Transp., 36 Cal. 4th 643, 655

(2005).

      Further, Federal did not raise a genuine issue of material fact that the

Sterling complaint gave rise to potential liability for a vicarious liability claim.

The Sterling complaint claimed discrimination arising from intentional actions

taken by the Sterlings or at their direction, and did not include claims for vicarious


                                            2
liability arising from the actions of a person who was not insured under the

National Union policy. See Minkler v. Safeco Ins. Co. of Am., 49 Cal. 4th 315, 318

(2010); Meyer v. Holley, 537 U.S. 280, 285 (2003). Century’s policy covered

liability only if the injury was caused by an “occurrence,” defined as “an accident,”

and so did not cover vicarious liability based on another person’s intentional

action. Dyer v. Northbrook Prop. & Cas. Ins. Co., 210 Cal. App. 3d 1540, 1551

(1989).

      Because the Sterling complaint did not give rise to any liability potentially

covered by the National Union or Century policies, National Union and Century

did not have a duty to defend the Sterling action. The district court therefore did

not err in granting summary judgment to National Union and Century.

AFFIRMED.




                                          3
