Filed 2/5/15 Certified for publication 3/4/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT

JESSICA GONZALEZ,                                                 H039368
                                                                 (Santa Clara County
         Plaintiff and Appellant,                                 Super. Ct. No. 1-11-CV215537)

         v.

FIRE INSURANCE EXCHANGE et al.,

         Defendants and Respondents.


         In 2007, plaintiff Jessica Gonzalez alleged she was sexually assaulted by Stephen
Rebagliati and nine other members of the De Anza College baseball team. A year later,
Gonzalez filed a civil lawsuit against her purported assailants. Rebagliati sought
insurance coverage for his defense against Gonzalez’s claims through his parents’
homeowner’s and personal umbrella policies, issued by respondents Fire Insurance
Exchange (Fire) and Truck Insurance Exchange (Truck). Both companies denied
coverage. Eventually, Rebagliati settled with Gonzalez, assigning Gonzalez his rights
against Fire and Truck. Gonzalez subsequently filed a complaint against the insurers for
breach of the duty of good faith and fair dealing and breach of contract. She also sought
recovery of judgment pursuant to Insurance Code section 11580. Fire and Truck moved
for summary judgment, arguing they had not owed Rebagliati a duty to defend. The trial
court granted their motion for summary judgment.
         On appeal, Gonzalez argues the trial court erred in granting summary judgment,
because there was a potential for coverage in her underlying action against Rebagliati due
to her allegations of accidental bodily injury, false imprisonment, invasion of privacy,
and slander. She also contends Truck’s umbrella policy is broadly worded and does not
require an “accident” for personal injury coverage. We conclude summary judgment was
properly granted in favor of Fire, because none of Gonzalez’s claims can be construed to
allege an accidental occurrence triggering insurance coverage. However, we find the trial
court erred in granting summary judgment in favor of Truck, as the insurer failed to
conclusively demonstrate its policy exclusions eliminated all potential for coverage. We
therefore reverse the order granting summary judgment and remand to the trial court for
further proceedings.
                       FACTUAL AND PROCEDURAL BACKGROUND
       Gonzalez’s Civil Lawsuit against Rebagliati
       On March 3, 2008, Gonzalez filed a civil lawsuit against Rebagliati and nine other
individuals. Her complaint contained multiple preliminary allegations that were
incorporated by reference in all of her causes of action. These allegations included the
following: On March 3, 2007, Gonzalez, who was 17 years old at the time, was invited
to a party held by several members of the De Anza College baseball team, including
Rebagliati. Upon her arrival, she was given shots of hard liquor in quick succession.
Later that night, she was assaulted by an unknown number of men as she lay unconscious
in a room. Three women who witnessed the assault attempted to help her but were
prevented by men inside the room. Gonzalez’s complaint alleged that Rebagliati, along
with several other named defendants, was inside the room where she was assaulted.
Eventually, the women broke through the doors and helped Gonzalez to a hospital where
she received medical attention. Some of the men in the room took videos, photographs,
and cheered while the assault took place.
       In total, the complaint alleged 15 causes of action, including causes of action for
negligence for failing to rescue Gonzalez from the assault, negligence for inviting her to

                                             2
the party, negligence for serving her alcohol, false imprisonment, invasion of privacy,
slander per se, battery, sexual battery, rape, unlawful intercourse, forcible acts, oral
copulation, and conspiracy. Her cause of action for slander per se alleged the defendants
had told others that she had consented to the sexual assault in the subsequent days and
months following the party. All of the causes of action were pleaded as to Rebagliati
“and/or each” of the other named defendants, except for a single cause of action for
negligence alleged against Steve Rebagliati.
       The Fire Homeowner’s Insurance Policy
       Rebagliati was covered by a homeowner’s policy issued by Fire. The policy
contained the following agreement: “We pay those damages which an insured becomes
legally obligated to pay because of bodily injury, property damage or personal injury
resulting from an occurrence to which this coverage applies. Personal injury means any
injury arising from: [¶] (1) false arrest, imprisonment, malicious prosecution and
detention. [¶] (2) wrongful eviction, entry, invasion of rights of privacy. [¶] (3) libel,
slander, defamation of character. [¶] (4) discrimination because of race, color, religion or
national origin. Liability prohibited by law is excluded. Fines and penalties imposed by
law are covered. [¶] At our expense and with attorneys of our choice, we will defend an
insured against any covered claim or suit.” (Emphasis omitted.)
       As defined by the policy, “[o]ccurrence means an accident including exposure to
conditions which results during the policy period in bodily injury or property damage.
Repeated or continuous exposure to the same general conditions is considered to be one
occurrence. [¶] Occurrence does not include accidents or events which take place during
the policy period which do not result in bodily injury or property damage until after the
policy period.” (Emphasis omitted.)
       The Fire policy set forth certain exclusions. It specifically provided exclusions for
“bodily injury, property damage or personal injury . . . caused intentionally by or at the

                                               3
discretion of an insured” or resulted “from any occurrence caused by an intentional act of
any insured where the results are reasonably foreseeable.”
       The policy also stated it would not “cover actual or alleged injury or medical
expenses caused by or arising out of the actual, alleged, or threatened molestation of a
child by: [¶] 1. any insured; or [¶] 2. any employee of any insured; or [¶] 3. any
volunteer, person for hire, or any other person who is acting or who appears to be acting
on behalf of any insured.” (Emphasis omitted.)
       Additionally, the policy excluded coverage for personal injury “caused by a
violation of penal law or ordinance committed by or with the knowledge or consent of
any insured.”
       The Truck Umbrella Policy
       Truck issued an umbrella insurance policy covering Rebagliati, which listed the
Fire homeowner’s policy on its schedule of underlying insurance. Truck’s coverage
policy stated it would pay damages resulting from an “occurrence,” and it would “defend
any insured for any claim or suit that is covered by this insurance but not covered by
other insurance.” The Truck policy defined an “occurrence” as “a. with regard to bodily
injury or property damage, an accident, including continuous or repeated exposure to
substantially the same general harmful conditions, which results in bodily injury or
property damage during the policy period; or [¶] b. with regard to personal injury,
offenses committed during the policy period, even if the resulting injury takes place after
the policy expires.”
       Bodily injury was defined as “bodily harm to, sickness or disease of any person.
This includes death, shock, mental anguish or mental injury that result from such bodily
harm, sickness or disease.” Personal injury was defined as injury arising out of several
enumerated torts, including “a. false arrest, wrongful detention or imprisonment, or
malicious prosecution; [¶] b. wrongful eviction, wrongful entry, or invasion of the right

                                             4
of private occupancy; or [¶] c. libel, slander, defamation of character or invasion of
privacy.”
       The Truck policy stated “[i]f a claim is made or suit is brought for damages
excluded from coverage under this policy, we have no obligation to defend such claim or
suit. If underlying insurance does not cover damages covered by this policy, we will: [¶]
. . . defend the insured against any covered claim or suit.”
       The policy included exclusions similar to those set forth in the Fire policy. The
Truck policy excluded damages “[e]ither expected or intended from the standpoint of an
insured.” The policy also excluded damages “[a]rising out of corporal punishment,
molestation or abuse of any person by any” insured individual. It also excluded coverage
for “personal injury arising out of oral or written publication of material when a willful
violation of a penal statute or ordinance has been committed by or with the consent of the
insured.”
       Fire and Truck’s Denial of Coverage
       On June 19, 2008, Rebagliati’s father sent a copy of the complaint filed by
Gonzalez to Farmer’s Insurance. Lisa Le, a special general adjuster for Fire and Truck,
was assigned Rebagliati’s claim. Le pulled copies of the Fire and Truck policies and
consulted with coverage counsel.
       On July 30, 2008, Le wrote to Rebagliati’s attorney, denying coverage for
Rebagliati’s defense on the grounds that “(1) none of the alleged conduct was the result
of an ‘accident’ and thus, there was no ‘occurrence’ as required by the [Fire]
Homeowners Policy; (2) all of the claims were excluded by the [Fire] Policy’s Sexual
Molestation Exclusion because they were all inextricably intertwined with the actual,
alleged, or threatened sexual misconduct, sexual molestation, or physical or mental abuse
of a minor; (3) the [Fire] Policy excluded coverage for claims for punitive damages; and
(4) the claims all involved willful conduct and were excluded pursuant to the [Fire]

                                              5
Policy’s intentional acts exclusion as well as by Insurance Code section 533.” Le also
explained that coverage was denied under the Truck policy for the same reasons.
       Rebagliati’s attorney sought reconsideration of the denial, and Gonzalez’s
complaint was forwarded to coverage counsel for analysis. In October 2008, Fire’s
coverage counsel, Lawrence Guslani, wrote to Rebagliati’s attorney and denied coverage
on the same grounds previously given. A month later, Rebagliati’s attorney again sought
reconsideration of the denial. Guslani wrote back in February 2009, reiterating that
coverage was denied because the allegations against Rebagliati were for sexual assault
and other nonaccidental conduct.
       In August 2009, Rebagliati’s attorney again tendered the defense to Fire and
Truck. Guslani wrote to Rebagliati’s attorney and denied coverage.
       The Bad Faith Action and Summary Judgment
       Later, Rebagliati entered into a confidential settlement agreement with Gonzalez.
As part of the agreement, Rebagliati assigned Gonzalez his contractual rights against Fire
and Truck. Rebagliati further agreed to entry of judgment in the underlying action
against him and in favor of Gonzalez.
       In December 2011, Gonzalez initiated a bad faith action against Fire and Truck
over their denial of coverage for Rebagliati’s defense.1 Gonzalez alleged causes of action
for breach of the duties of good faith and fair dealing, breach of contract, and sought
direct recovery of judgment.
       Both insurance companies moved for summary judgment, which the trial court
granted on November 26, 2012, after finding the companies did not owe Rebagliati a duty




       1
         State Farm General Insurance Company (State Farm) was a party to the bad faith
lawsuit filed by Gonzalez, but is not a part of this appeal.


                                             6
to defend based on Gonzalez’s complaint. On December 18, 2012, judgment was entered
in favor of Fire and Truck, and Gonzalez appealed.2
                                  STANDARD OF REVIEW
       We review the trial court’s grant of summary judgment under a de novo standard
of review. (Monticello Ins. Co. v. Essex Ins. Co. (2008) 162 Cal.App.4th 1376, 1385.)
Summary judgment is granted if all the moving papers show there is no triable issue of
any material facts, and the moving party is entitled to judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c).) Defendants are entitled to summary judgment if a
necessary element of plaintiff’s complaint cannot be established or if there is a complete
defense to the plaintiff’s cause of action. (Id., subd. (o)(2).) In reviewing a grant of
summary judgment in favor of the defendant, as in this situation, we must review the
entire record de novo and determine whether the defendant “ ‘conclusively negated a
necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there
a material issue of fact that requires the process of trial.’ ” (WYDA Associates v. Merner
(1996) 42 Cal.App.4th 1702, 1709.)
                                        DISCUSSION
       Gonzalez contends the trial court erred in granting summary judgment in favor of
Fire and Truck, because the insurers erroneously refused to defend Rebagliati against the
claims asserted in her civil complaint. Whether there was a duty to defend hinges upon
the language of the insurance policies in question. Since Rebagliati was covered by two
different policies (the homeowner’s insurance policy issued by Fire and the umbrella




       2
        The judgment entered against Gonzalez in favor of Fire and Truck is appealable
even though other causes of action remained against State Farm. This is because the
judgment was final as to Fire and Truck. (See Culligan v. State Comp. Ins. Fund (2000)
81 Cal.App.4th 429, 433.)


                                              7
insurance policy issued by Truck) that do not have identical provisions, we will analyze
the insurers’ duty to defend separately.
        1. Legal Framework
        “ ‘[A] liability insurer owes a broad duty to defend its insured against claims that
create a potential for indemnity.’ ” (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th
583, 590 (Quan).) “ ‘ “[T]he carrier must defend a suit which potentially seeks damages
within the coverage of the policy.” [Citation.] Implicit in this rule is the principle that
the duty to defend is broader than the duty to indemnify; an insurer may owe a duty to
defend its insured in an action in which no damages ultimately are awarded. [Citations.]’
[Citation.] ‘The determination whether the insurer owes a duty to defend usually is made
in the first instance by comparing the allegations of the complaint with the terms of the
policy. Facts extrinsic to the complaint also give rise to a duty to defend when they
reveal the possibility that the claim may be covered by the policy.’ ” (Id. at p. 591.)
        This legal framework shapes a party’s burden when seeking summary judgment.
(Vann v. Travelers Companies (1995) 39 Cal.App.4th 1610, 1614.) “To prevail [on the
duty to defend issue], the insured must prove the existence of a potential for coverage,
while the insurer must establish the absence of any such potential. In other words, the
insured need only show that the underlying claim may fall within policy coverage; the
insurer must prove it cannot. Facts merely tending to show that the claim is not covered,
or may not be covered, but are insufficient to eliminate the possibility that resultant
damages (or the nature of the action) will fall within the scope of coverage, therefore add
no weight to the scales. Any seeming disparity in the respective burdens merely reflects
the substantive law.” (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287,
300.)
        “The Montrose court reiterated . . . that ‘ “the insurer need not defend if the third
party complaint can by no conceivable theory raise a single issue which could bring it

                                               8
within the policy coverage.” ’ [Citations.] [¶] Nevertheless, the obligation to defend is
not without limits. ‘Rather, such a duty is limited by “the nature and kind of risk covered
by the policy.” ’ [Citations.] ‘ “[T]he duty to defend derives from the insurer’s coverage
obligations assumed under the insurance contract.” [Citation.] Thus, “where there is no
potential for coverage, there is no duty to defend.” ’ ” (Quan, supra, 67 Cal.App.4th at
pp. 591-592, fn. omitted.)
       A complaint is to be liberally construed in favor of potential coverage. (Waller v.
Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 23, 44.) “Since pleadings are easily
amended, the proper focus is on the facts alleged, rather than the theories for recovery.
[Citation.] However, the insured ‘ “may not speculate about unpled third party claims to
manufacture coverage” ’ [citation], and the insurer has no duty to defend where the
potential for liability is ‘ “tenuous and farfetched.” ’ [Citation.] The ultimate question is
whether the facts alleged ‘fairly apprise’ the insurer that the suit is upon a covered
claim.” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1106.)
       “[W]hen an insurer seeks summary judgment on the ground the claim is excluded,
the burden is on the insurer to prove that the claim falls within an exclusion.” (Brodkin v.
State Farm Fire & Casualty Co. (1989) 217 Cal.App.3d 210, 216.) In contrast, “[a]n
insured has the burden of proving its claim falls within the scope of the policy’s basic
coverage, even where the insurer brings a motion for summary judgment.” (Roberts v.
Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1407.)
       “In determining whether a duty to defend exists, courts look to all the facts
available to the insurer at the time the insured tenders its claim for a defense. . . . The
court must look ‘not to whether noncovered acts predominate in the third party’s actions,
but whether there is any potential for liability under the policy.’ [Citation.] ‘Any doubt
as to whether the facts give rise to a duty to defend is resolved in the insured’s favor.’ ”
(Vann v. Travelers Companies, supra, 39 Cal.App.4th at pp. 1614-1615.)

                                               9
       When a complaint states multiple claims, some of which are potentially covered
by the insurance policy and some of which are not, it is a mixed action. In these cases,
“the insurer has a duty to defend as to the claims that are at least potentially covered,
having been paid premiums by the insured therefor, but does not have a duty to defend as
to those that are not, not having been paid therefor.” (Buss v. Superior Court (1997) 16
Cal.4th 35, 48.) However, in a “ ‘mixed’ action, the insurer has a duty to defend the
action in its entirety.” (Ibid.) Thereafter, the insurance company is entitled to seek
reimbursement for the cost of defending the claims that are not potentially covered by the
policy. (Id. at p. 53.) Therefore, if even one of Gonzalez’s claims against Rebagliati
triggered a duty to defend under the insurers’ respective policies, Fire and Truck were
required to provide him a defense.
       2. The Fire Homeowner’s Insurance Policy
           a. Definition of an “Occurrence”
       Gonzalez contends Fire refused to defend Rebagliati based on an erroneous
interpretation of the term “occurrence” under the policy.3 Gonzalez argues that because
the policy defined “occurrence” relative only to “bodily injury” with no mention of
whether it applies to a “personal injury,” certain personal injury offenses including
intentional torts such as false imprisonment and slander are clearly anticipated and should
receive coverage. We disagree.


       3
         Fire and Truck contend we should not address these arguments because Gonzalez
failed to raise them below. However, when “an appeal raises a question of law on
undisputed facts, the issue has not been forfeited.” (Winchester Mystery House, LLC v.
Global Asylum, Inc. (2012) 210 Cal.App.4th 579, 594.) It is well-settled that
“[i]nterpretation of an insurance policy presents a question of law governed by the
general rules of contract interpretation.” (Davis v. Farmers Ins. Group (2005) 134
Cal.App.4th 100, 104.) Here, the parties do not dispute the terms of the Fire policy in
question, only the interpretation of the policy, which is a question of law. We therefore
conclude Gonzalez has not forfeited her contentions on appeal.


                                             10
       The Second Appellate District considered the exact same argument regarding the
definition of an “occurrence” in Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880
(Lyons). The policy language at issue in Lyons was identical to the Fire policy at issue
here. Lyons, like Gonzalez, contended that the limitation of coverage to accidents did not
apply to the policy’s definition of “personal injury.” (Id. at p. 886.) The court concluded
this interpretation of the policy inappropriately read the words “ ‘resulting from an
occurrence’ out of the phrase ‘personal injury resulting from an occurrence.’ ” (Ibid.)
       The Second Appellate District noted the insurance policy in question
unequivocally defined an “occurrence” as an “accident.” (Lyons, supra, 161 Cal.App.4th
at p. 887.) “The clause that Lyons focuses upon--‘which results during the policy period
in bodily injury or property damage’--merely imposes an additional temporal limitation
on bodily injury and property damage, to the effect that any resulting injuries must occur
within the policy period. By contrast, although the personal injury coverage is also
limited to accidents, it has no temporal limitation. Rather, the specified personal injury
torts are covered so long as they involve accidents committed during the policy period,
regardless of whether the injury occurred during or after the policy period. Indeed, this is
a timing distinction that is well recognized in insurance policies.” (Ibid.)
       The court further concluded that Lyons’ interpretation of the policy would
“remove a necessary element of the policy’s basic coverage grant, and thus result in
improperly rewriting the clear language of the contract. [Citations.] Also, such a reading
would be contrary to the rule that all words in a contract are to be given meaning (see
Civ. Code, § 1641), with the language in the contract ‘interpreted as a whole.’ ” (Lyons,
supra, 161 Cal.App.4th at p. 886.) The court therefore found that an “occurrence” was
defined as an “accident,” a definition that applied to bodily injury, property damage, and
personal injury. (Id. at pp. 886-887.)



                                             11
       Gonzalez contends the Lyons decision is flawed because it ignored the language in
the policy that provided an occurrence “does not include accidents or events” that take
place during the policy period that do not result in bodily injury or property damage. We
disagree, and find the reasoning in Lyons persuasive. Gonzalez’s interpretation of the
policy language misreads the terms. The policy language indicating that an occurrence
“does not include” certain “accidents or events” does not mean that an occurrence does
include both accidents and events. Given our conclusion that the Fire policy only
requires the company to indemnify--and therefore defend--“occurrences,” which are
defined as accidents, we turn next to Gonzalez’s contention that her complaint alleged
covered accidental acts.
          b. Duty to Defend “Accidental” Acts of the Insured
       Gonzalez contends her complaint against Rebagliati broadly alleged negligent and
accidental conduct that raise the potential for coverage under the Fire policy. She claims
that in her cause of action for negligence, her complaint presented the possibility that “the
only thing Rebagliati did was enter the room, or the only thing he did was witness
conduct of others, or that the only thing he did was create a dangerous condition.”
Similarly, she insists that in her cause of action for false imprisonment, her complaint
“raised the potential that Rebagliati engaged in conduct amounting to false imprisonment,
a personal injury peril specifically covered by the [Fire] policy.” Gonzalez additionally
maintains her causes of action for invasion of privacy and slander per se should have
come within the Fire policy’s personal injury coverage.
       In Quan, the Second Appellate District contemplated a similar issue after a trial
court sustained an insurance company’s demurrer to an insured’s complaint alleging
causes of action for bad faith. (Quan, supra, 67 Cal.App.4th at pp. 586-587.) The
underlying complaint had alleged the insured assaulted and raped the claimant, and also



                                             12
alleged causes of action for negligence and negligent infliction of emotional distress. (Id.
at p. 593.)
       The Quan court noted “[i]t is common to hear the argument that if the underlying
complaint alleges negligence, there must be a duty to defend. This is not necessarily true.
The duty to defend depends upon the coverage provided by the policy--the ‘nature and
kind of risk covered’--which in turn depends upon the wording of the coverage clauses.”
(Quan, supra, 67 Cal.App.4th at p. 595.) The Quan court determined the insurance
policy’s coverage of bodily injuries was restricted to damages arising from an
“occurrence,” which was defined as an “accident.” (Ibid.) The court further explained
that “[t]o avoid the consequences of the conclusion that no ‘accident’ has been alleged,
the insured argues he might be found merely ‘negligent,’ or may be found to have
mistakenly believed the claimant had ‘consented.’ ” (Id. at p. 596.)
       The Second Appellate District rejected this argument, noting there was a “
‘misapprehension that all claims for negligence must at least potentially come within the
policy and therefore give rise to a duty to defend. That is not so . . . . “Negligent” and
“accidental” are not synonymous . . . .’ ” (Quan, supra, 67 Cal.App.4th at p. 596,
quoting American Internat. Bank v. Fidelity & Deposit Co. (1996) 49 Cal.App.4th 1558,
1572-1573.) “ ‘An accident . . . is never present when the insured performs a deliberate
act unless some additional, unexpected, independent, and unforeseen happening occurs
that produces the damage.’ ” (Quan, supra, at p. 598, italics removed, quoting Merced
Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50.) Intentional acts are not
accidents, even if the act causes unintended harms. (Quan, supra, at p. 600.)
       Quan concluded there was no theory available on the facts alleged in the
complaint that could show the insurance company was liable “for physical injuries caused
by ‘accidentally’ touching, kissing, embracing or having sex with the claimant, nor is
there any additional ‘happening’ to combine with these necessarily deliberate acts so as

                                             13
to produce an ‘accident’ giving rise to bodily injury. There is thus no potential liability
for ‘bodily injury’ caused by an ‘occurrence’ and no duty to defend.” (Quan, supra, 67
Cal.App.4th at pp. 600-601.)
       Like Quan, the issue here is whether the acts alleged in the complaint were
accidental and therefore a covered “occurrence” under the Fire homeowner’s policy. We
conclude that despite Gonzalez’s assertion that her pleadings raised the potential for
coverage by alleging “accidental bodily injury,” her claims of negligence do not
constitute an “accident” under the definition set forth in Quan.
       Gonzalez’s complaint alleged several preliminary allegations that were
incorporated into all of her causes of action. She alleged that Rebagliati was inside the
room when she was sexually assaulted.4 Additionally, she alleged that while she was
sexually assaulted, several women attempted to rescue her from the situation but were
prevented by the men in the room.
       Despite these allegations, Gonzalez maintains her complaint alleged accidental
conduct. We disagree. First, Gonzalez claimed Rebagliati may have been found
negligent for his failure to rescue Gonzalez from the situation. However, this is an
intentional act, not an “accident” that results in “ ‘additional, unexpected, independent
and unforeseen happening.’ ” (Quan, supra, 67 Cal.App.4th at p. 599.) “When one
expects or intends an injury to occur, there is no ‘accident.’ ” (Interinsurance Exchange
v. Flores (1996) 45 Cal.App.4th 661, 669.) An alleged failure to rescue Gonzalez from
the situation can only be characterized as a deliberate, intentional act.
       Gonzalez also points to her third cause of action for false imprisonment, arguing
that her complaint alleged the possibility that Rebagliati accidentally caused her to be

       4
         The complaint alleged: “Plaintiff is informed and believes and thereon alleges
that Defendants STEPHEN REBAGLIATI [and nine other defendants] were the men
inside the room.”


                                              14
confined to a room. Gonzalez argues that her complaint raised the possibility that
“Rebagliati faced potential liability for accidentally blocking [her] egress from the room,
or accidentally placing himself so as to prevent departure or rescue.” This assertion is
based on the broad wording of her allegation of false imprisonment, which asserted that
Rebagliati and the other defendants to her lawsuit “caused [Gonzalez] to be confined in a
room on the property.”
       The Lyons court illustrated two situations where negligent false imprisonment may
constitute an accident. In the first example, a shopkeeper closes a storage vault forgetting
he had asked an employee to go inside to take inventory. (Lyons, supra, 161 Cal.App.4th
at p. 888.) In the second example, a store owner detains an individual he mistakenly
believes was shoplifting. (Ibid.) In these scenarios, the “conduct is intentional and
results in the restraint and control of the movements of the other person” but can still be
characterized as “accidental.” (Ibid.) These intentional acts are accidental because they
“potentially arise[] from extrinsic causes, such as the employee’s unexpected or chance
distraction, or the carelessness of the shopkeeper. So, too, the wrongful detention of a
suspected shoplifter without reasonable cause typically arises from an employee’s
careless assessment of objective facts. The above scenarios all involve mistakes as to
objective facts.” (Id. at p. 889.)
       Importantly, “coverage turns not on ‘the technical legal cause of action pleaded by
the third party’ but on the ‘facts alleged in the underlying complaint’ or otherwise known
to the insurer. (Barnett v. Fireman’s Fund Ins. Co. [(2001)] 90 Cal.App.4th [500,] 510,
italics added.) A general boilerplate pleading of ‘negligence’ adds nothing to a complaint
otherwise devoid of facts giving rise to a potential for covered liability. (See Michaelian
v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1107.)” (Swain v. California
Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 8.) Therefore, to determine whether



                                             15
Gonzalez’s complaint sufficiently alleged accidental conduct that would give rise to
coverage, we must look at what acts were alleged in her complaint.
       Gonzalez’s complaint simply does not allege a possibility that Rebagliati
“accidentally” falsely imprisoned her based on a mistake as to the objective facts.
Gonzalez’s argument that her complaint alleged the possibility that Rebagliati only
committed accidental acts--such as mistakenly blocking her exit--is not asserted in her
underlying complaint, which plainly alleged Rebagliati and the other men in the room
engaged in intentional acts. Gonzalez’s attempt to parse out the complaint for accidental
conduct that may give rise to coverage is unavailing; the entirety of her allegations
involved intentional conduct.
       Gonzalez appears to assert that her complaint could be hypothetically construed to
state a claim regarding accidental conduct. However, this argument is not based on any
facts alleged in her complaint, and “[a]n insured may not trigger the duty to defend by
speculating about extraneous ‘facts’ regarding potential liability or ways in which the
third party claimant might amend its complaint at some future date.” (Gunderson v. Fire
Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.)
       Moreover, the other causes of action Gonzalez insists can be interpreted as based
on accidental conduct, such as her causes of action for invasion of privacy and slander
per se, also involve intentional conduct. Gonzalez’s complaint alleged the men in the
room jeered, cheered, and took pictures of the assault. She also alleged they slandered
her in the days and months following the incident. Any utterance by Rebagliati, or any
action taken in furtherance of invading Gonzalez’s privacy, would have been an
intentional act and not an accidental occurrence that would be potentially covered by the
Fire policy.
       In sum, Gonzalez has failed to carry her burden to show any of her causes of
action may fall within the scope of the policy coverage. (Montrose Chemical Corp. v.

                                            16
Superior Court, supra, 6 Cal.4th at p. 300.) Accordingly, the trial court did not err in
granting Fire’s motion for summary judgment. Based on our foregoing conclusion, we
need not address whether the alleged causes of action would have fallen within the Fire
policy’s exclusions for child molestation and intentional conduct.
       3. The Truck Umbrella Policy
          a. Personal Injury Coverage
       Next, Gonzalez insists the court erred in granting summary judgment in favor of
Truck because its umbrella policy provided broader coverage than the Fire homeowner’s
insurance policy. Specifically, she argues the umbrella policy’s definition of “personal
injury” did not require covered incidents to be “accidental” in nature. Given the wording
of the policy’s definitions, we agree.
       The Truck policy provided coverage for “damages caused by an occurrence in
excess of the retained limit on the insured’s behalf,” and stated the company would
“defend any insured for any claim or suit that is covered by this insurance but not covered
by other insurance.” The policy further asserted that “[i]f a claim or suit is made for
damages excluded from coverage under this policy, we have no obligation to defend such
claim or suit.”
       Gonzalez points to the policy’s definition of an “occurrence”: “Occurrence
means: [¶] a. with regard to bodily injury or property damage, an accident, including
continuous or repeated exposure to substantially the same general harmful conditions,
which results in bodily injury or property damage during the policy period; or [¶] b. with
regard to personal injury, offenses committed during the policy period, even if the
resulting injury takes place after the policy expires.” (Italics added.) “Personal Injury” is
defined under the policy as “injury arising out of: [¶] a. false arrest, wrongful detention or
imprisonment, or malicious prosecution; [¶] b. wrongful eviction, wrongful entry, or



                                             17
invasion of the right of private occupancy; or [¶] c. libel, slander, defamation of character
or invasion of privacy.”
       Accordingly, the Truck umbrella policy sets forth no requirement that a personal
injury arise out of an “accident” in order for there to be coverage. As a result, Gonzalez’s
complaint, which alleged causes of action for false imprisonment, slander per se, and
invasion of privacy, raised the potential for coverage under the umbrella policy’s
provision providing coverage for damages from an “occurrence” resulting in “personal
injury.”
           b. Exclusions
       Finding that Gonzalez’s complaint raised the potential for personal injury
coverage, we next turn to Truck’s claim that coverage would have been properly denied
under the policy’s exclusions for damages that are “[e]ither expected or intended from the
standpoint of an insured,” arise “out of corporal punishment, molestation or abuse of any
person by any” insured, or arise “out of oral or written publication of material when a
willful violation of a penal statute or ordinance has been committed by or with the
consent of the insured.”
       Determining whether an exclusion applies is unlike our earlier analysis of the Fire
policy, which centered on the initial question of coverage. Here we are faced with an
issue of exclusion. While an insured bears the initial burden to demonstrate a claim may
be covered by a policy, when it comes to exclusions the burden is switched. It is up to
the insurer to conclusively show an exclusion to the policy applies barring coverage.
(Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1034 [“[o]nce
that possibility of coverage has been raised . . . then the insurer may defeat such claim of
coverage by extrinsic evidence, but only where ‘ “such evidence presents undisputed
facts which conclusively eliminate a potential for liability.” ’ ”]) “First-and third party
coverage is today typically provided in a single policy, and under both types of coverage,

                                              18
once the insured shows that an event falls within the scope of basic coverage under the
policy, the burden is on the insurer to prove a claim is specifically excluded. [Citations.]
Moreover, exclusionary clauses are interpreted narrowly, whereas clauses identifying
coverage are interpreted broadly.” (Garvey v. State Farm Fire & Casualty Co. (1989) 48
Cal.3d 395, 406.)
       Therefore, our analysis is focused on whether Truck met its burden to establish all
of Gonzalez’s claims were excluded from coverage. (See Brodkin v. State Farm Fire &
Casualty Co., supra, 217 Cal.App.3d at p. 216.) With this framework in mind, we
address each of the exclusions raised by Truck on appeal.
       Sexual Molestation Exclusion
       From the face of the complaint, it is clear that some of Gonzalez’s claims would
be excluded from coverage as arising from sexual molestation by the insured. For
example, Gonzalez’s causes of action for battery and unlawful intercourse, which alleged
the defendants engaged in sexual intercourse with her without her consent, would be
excluded. Rebagliati’s liability for damages would necessarily have arisen from his acts
of molestation.
       However, whether the sexual molestation exclusion bars coverage of Gonzalez’s
other claims is not quite as clear. The Truck policy excludes coverage for damages
resulting from any acts of “molestation” by the insured (Rebagliati), an employee of any
insured, or by a person performing volunteer services on behalf of an insured, or any
other person who is acting or who appears to be acting on behalf of an insured.
Gonzalez’s complaint was pleaded using the disjunctive “and/or,” specifically alleging
that Rebagliati “and/or each” of the defendants caused her injury. Therefore, her
complaint raised the possibility that the other defendants--and perhaps not Rebagliati--
committed the physical act of assaulting Gonzalez.



                                             19
       In fact, her complaint suggests the possibility that Rebagliati may not have
engaged in the sexual assault, but was present in the room while the assault took place
and may have thereafter disparaged Gonzalez’s reputation by slandering her after the
incident. The complaint indicates Rebagliati may be held liable for damages resulting
from his alleged slander, false imprisonment, or invasion of Gonzalez’s privacy arising
from molestation undertaken by the other named defendants in the civil lawsuit.
Therefore, the sexual molestation exclusion does not necessarily apply, because it only
excludes coverage for damages arising from an act of molestation by the insured, an
individual acting on behalf of the insured, an individual performing volunteer services on
behalf of an insured, or an employee of an insured. There is no evidence the other
defendants acted on behalf of Rebagliati such that their molestation of Gonzalez would
fall under this exclusion.
       In the trial court the insurers asserted that there was no possibility that any
damages could arise out of a covered occurrence because Rebagliati later admitted to
touching Gonzalez at the party. However, there is nothing to indicate this fact was
known to the insurance company at the time Rebagliati tendered his defense. In a
declaration submitted by Gonzalez to the trial court, Rebagliati’s attorney asserted his
client denied responsibility and denied all of Gonzalez’s allegations. Therefore, that
Rebagliati eventually admitted to touching Gonzalez at some point after he tendered his
defense to Fire and Truck is irrelevant to our analysis. Extrinsic facts negating an
insurer’s duty to defend must have been known to the insurer at the time of tender or at
the inception of the lawsuit. (Montrose Chemical Corp. v. Superior Court, supra, 6
Cal.4th at p. 295.)
       Notably, the insurance companies’ declarations in support of their motion for
summary judgment assert an investigation was conducted into Rebagliati’s claim before
he was denied coverage. However, the companies failed to attach any documents

                                              20
detailing the results of this investigation, and the letter denying Rebagliati coverage relied
solely on comparing the allegations of the complaint against the language of the policies.
Perhaps there was extrinsic evidence known to Truck that affirmatively showed
Rebagliati engaged in the sexual assault, thereby excluding coverage for all of
Gonzalez’s claims and foreclosing any duty to defend. Nonetheless, no evidence of this
type was submitted to the trial court. Therefore, Truck has failed to meet its burden to
conclusively show the policy’s exclusion for damages incurred from molestation by the
insured would have precluded coverage for all claims.
       Expected or Intended Damages
       Next, we examine whether the policy’s exclusion for damages that are “[e]ither
expected or intended from the standpoint of the insured” obviate Truck’s duty to defend.
Indeed, Insurance Code section 533 provides a statutory exclusion that “[a]n insurer is
not liable for a loss caused by the willful act of the insured; but he is not exonerated by
the negligence of the insured, or of the insured’s agents or others.” Courts have held that
“[t]he appropriate test for ‘expected’ damage is whether the insured knew or believed its
conduct was substantially certain or highly likely to result in that kind of damage.” (Shell
Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 748.) “ ‘[E]ven an act
which is “intentional” or “willful” within the meaning of traditional tort principles will
not exonerate the insurer from liability under Insurance Code section 533 unless it is done
with a “preconceived design to inflict injury.” ’ ” (Republic Indemnity Co. v. Superior
Court (1990) 224 Cal.App.3d 492, 500-501.) Therefore, it is the insured’s subjective
belief as to whether his or her conduct would cause the type of damage claimed that
excludes coverage.
       Since Rebagliati denied any wrongdoing at the time of tender and because Truck
has not submitted any evidence to the contrary, we cannot find that the insurer has met its
burden on this exclusion. Based on the complaint, Rebagliati could have been found

                                             21
liable for damages incurred by Gonzalez due to his negligence in creating the conditions
that led to her false imprisonment in the room. A tort such as false imprisonment may
result from intentional conduct and is therefore nonaccidental, but a subjective intent or
expectation that harm would occur on the part of the insured is not required for liability.
(See Lyons, supra, 161 Cal.App.4th at pp. 888-889.) The same can be said of Gonzalez’s
cause of action for slander per se, which does not require proof that an individual
intended to cause harm.5
       Furthermore, distinguishing a tort as “intentional” and determining whether any
damages are “intended or expected” by the insured requires a fundamentally different
analysis. One may commit an intentional act without subjectively intending or expecting
damages. Here, Truck has failed to meet its burden to conclusively show that Rebagliati
would have expected or intended any damages to flow from his alleged conduct based
solely on the allegations of the complaint.
       Criminal Acts
       Lastly, we turn to whether the acts alleged would fall under Truck’s exclusion for
“personal injury arising out of oral or written publication of material when a willful
violation of a penal statute or ordinance has been committed by or with the consent of the
insured.”

       5
          “Slander is a form of defamation (Civ. Code, § 44), consisting of a false and
unprivileged oral publication (Civ. Code, § 46). To establish a prima facie case for
slander, a plaintiff must demonstrate an oral publication to third persons of specified false
matter that has a natural tendency to injure or that causes special damage. (See Smith v.
Maldonado [(1999)] 72 Cal.App.4th [637,] 645.) Certain statements are deemed to
constitute slander per se, including statements (1) charging the commission of crime, or
(2) tending directly to injure a plaintiff in respect to the plaintiff’s business by imputing
something with reference to the plaintiff’s business that has a natural tendency to lessen
its profits. (Civ. Code, § 46, par. 1; Albertini v. Schaefer (1979) 97 Cal.App.3d 822,
829.) Slander per se is actionable without proof of special damage. (Albertini, at p.
829.)” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106-107.)


                                              22
       Again, Truck has failed to meet its burden to conclusively show this exclusion
would bar coverage for Gonzalez’s complaint. There was no extrinsic evidence at the
time of tender that conclusively demonstrated Rebagliati assaulted Gonzalez and
therefore violated the law. Nor was there an admission on Rebagliati’s behalf that he
committed a crime. Furthermore, the complaint raised the possibility that the other
individuals named in the complaint were the ones who perpetrated the sexual assault
against Gonzalez. There was no evidence that Rebagliati somehow consented to these
acts or ratified these acts in any way. As a result, Truck has failed to conclusively
demonstrate this exclusion would eliminate coverage for all of Gonzalez’s claims.
       Truck’s arguments on appeal suffer from a pervasive flaw: a reliance on the
allegations in the complaint in ascertaining an exclusion to the policy applies. While this
analysis may be applicable to determine whether coverage applies, it is the burden of the
insurer to demonstrate an exclusion eliminates all potential for coverage.
              c. Inseparably Intertwined with Sexual Acts
       Fire and Truck also broadly claim that the allegations in Gonzalez’s complaint,
including her causes of action for negligence and slander, were inseparably intertwined
with the underlying sexual assault and should therefore be excluded from coverage on
that basis.
       In part, the insurers cite to Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th
1076 (Horace Mann). Horace Mann contemplated whether an insurance carrier was
required to defend its insured, a teacher, under an educator’s liability policy after a minor
student filed an action seeking damages stemming from the teacher’s alleged sexual and
other nonsexual misconduct. (Id. at p. 1078.) Earlier, the teacher had pleaded nolo
contendere in a separate criminal case to a count of violating Penal Code section 288,
subdivision (a). (Horace Mann, supra, at p. 1079.) The insurance company accepted
tender of the teacher’s defense of the minor’s suit, reserving its rights to disclaim

                                             23
coverage or an obligation to defend. Thereafter, the insurance company filed a
declaratory relief action seeking a determination of its duty to defend. (Id. at p. 1080.)
The insurance company moved for summary judgment, arguing its policy did not provide
coverage as a matter of law, because the teacher’s conduct was intentional within the
meaning of Insurance Code section 533 and was unrelated to educational activities.
(Horace Mann, supra, at p. 1080.) The trial court granted the motion, concluding that all
of the teacher’s acts were either sexual or intentional, and entered judgment in favor of
the insurance company. The appellate court affirmed, and our Supreme Court reversed.
(Id. at p. 1081.)
       The Horace Mann court noted that it had previously decided that a liability insurer
does not possess “a duty to indemnify an insured in an action for damages arising out of
child molestation” in J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009.
(Horace Mann, supra, 4 Cal.4th at p. 1081.) However, the court determined “the flaw in
[the insurance company’s] reasoning is its unsupported assumption that the other alleged
misconduct necessarily was part of the molestation and not in the course of [the
teacher’s] educational activities.” (Id. at p. 1082.) At the time of the summary
adjudication proceeding, the teacher had admitted violating Penal Code section 288,
thereby establishing at least one act of sexual misconduct that would be excluded from
policy coverage. (Horace Mann, supra, at p. 1083.) However, the record was “devoid of
evidence which establishes the chronology or sequence of events comprising the alleged
misconduct or that these actions were integral to the molestation. For instance, the record
is devoid of evidence demonstrating that [the teacher’s] acts of [other misconduct]
occurred in such close temporal and spatial proximity to the molestation as to compel the
conclusion that they are inseparable from it for purposes of determining whether [the
insurance company] [had] a duty to defend [the teacher].” (Id. at pp. 1083-1084.)



                                             24
       The Horace Mann court underscored that this was so even if the admitted
molestation was the “ ‘dominant factor’ ” in the case. (Horace Mann, supra, 4 Cal.4th at
p. 1084.) Nonetheless, the court also reiterated that there may be cases where a plaintiff’s
allegations of molestation are “inseparably intertwined,” eliminating the duty to defend.
(Id. at p. 1085.)
       Many appellate courts have distinguished the unique factual circumstances
presented in Horace Mann and have determined insurers have no duty to defend certain
claims involving sexual assault or molestation. For example, in Coit Drapery Cleaners,
Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595 (Coit), the appellate court concluded
that a defendant in a sexual harassment case was properly denied insurance coverage
because the alleged incidents were intentional in nature and barred under Insurance Code
section 533. (Coit, supra, at p. 1599.) Coit concluded that unlike the allegations of
negligence in Horace Mann, the case at bench presented a clear picture that “the conduct
of the defendants was inseparably intentional” and was “part of a consistent course of
sexual harassment of an unconsenting victim, in an employment setting.” (Id. at p.
1608.) Furthermore, the harassed employee did not allege a claim for negligent
supervision, and no claim of negligence could have been supported based on the facts.
(Id. at p. 1609.)
       Fire and Truck also argue that a case from this court, State Farm Fire & Casualty
Co. v. Century Indemnity Co. (1997) 59 Cal.App.4th 648, 662 (State Farm Fire), stands
for the proposition that there is no duty to defend when sexual and nonsexual claims
overlap. In State Farm Fire, three former students sued four teachers and a school
district, alleging that one of the teachers sexually molested them, and the other defendant
teachers failed to report the offending teacher to the proper authorities. (Id. at p. 652.)
The teacher accused of molestation tendered his defense to the district’s insurer, and the
insurer declined to defend. Thereafter, the teacher tendered his defense to State Farm

                                              25
Fire, which accepted the defense under the teacher’s homeowner’s policy. (Ibid.) State
Farm Fire thereafter filed suit against the district’s insurer to recover the cost of
defending the teacher. The trial court granted summary judgment in favor of State Farm
Fire, and this court reversed. (Ibid.)
       State Farm Fire contended on appeal that Horace Mann controlled, because the
underlying complaint alleged both sexual misconduct and nonsexual conduct arising
from the accused teacher’s failure to report the allegations lodged against himself by the
victim students. (State Farm Fire, supra, 59 Cal.App.4th p. 661.) However, this court
disagreed, finding the accused teacher’s negligent failure to report was “directly and
necessarily linked to the molestation because it is information about that molestation that
[the teacher] failed to report.” (Id. at p. 662.) Furthermore, we concluded that
“realistically, a subsequent failure to report one’s own unlawful sexual contact with a
minor is not distinct and separable conduct; rather, it is an integral part of the shroud of
secrecy that typically hides molestation and is essential to its perpetration.” (Ibid.) We
determined that “the gravamen of alleged negligent failure to report and the alleged
molestation is essentially the same: an injury to the minor’s interest in protecting and
preserving his or her physical integrity from sexual misconduct by [the teacher].” (Id. at
p. 663.)
       Similarly, in Jane D. v. Ordinary Mutual (1995) 32 Cal.App.4th 643 (Jane D.), the
Third Appellate District considered a case where a plaintiff brought suit against a priest,
alleging the priest had induced her into having sexual relations after she sought
counseling from him when she was only 15 years old. (Id. at p. 645.) The priest did not
oppose the plaintiff’s lawsuit and the plaintiff obtained a default judgment against him.
Thereafter, the plaintiff brought an action against the defendant insurance company,
seeking a declaration that the priest was covered by the policy and the company was



                                              26
therefore obligated to pay the full policy limit in satisfaction of the default judgment
against the priest. (Id. at p. 646.)
        The policy at issue provided insurance coverage for bodily injury and property
damage, and “ ‘persons insured’ ” was defined as employees acting within the scope of
their employment. (Jane D., supra, 32 Cal.App.4th at p. 646.) The “named insured” was
the diocese. The policy provided exclusions for “ ‘licentious, immoral or sexual behavior
intended to lead to or culminating in any sexual act.’ ” (Id. at p. 647.) The policy also
provided a sexual misconduct endorsement, which provided the insurance company
would pay a maximum of $1 million on behalf of the named insureds for damages due to
“ ‘any claim made against such Named Insureds arising out of sexual misconduct, sexual
abuse, sexual harassment or sexual molestation of or by any person,’ subject to certain
conditions. It also provided: ‘No other endorsement to the policy is intended to provide
coverage for any claims concerning sexual misconduct, sexual abuse, sexual harassment,
or sexual molestation of or by any person.’ ” (Ibid.) On a motion for summary
judgment, the trial court determined the accused priest was not a “named insured” under
the policy and entered judgment in favor of the defendant insurance company. (Id. at p.
648.)
        Jane D. cited to and distinguished the Horace Mann decision. The plaintiff in
Jane D. had argued that there were allegations in her complaint that were based on
nonsexual conduct. However, the court determined that unlike the factual scenario
described in Horace Mann, the “allegations of nonsexual conduct--obtaining information
about plaintiff during counseling and using this information and misusing counseling
techniques to create transference and to control and induce plaintiff’s behavior--were
‘inseparably intertwined’ with the sexual misconduct.” (Jane D., supra, 32 Cal.App.4th
at p. 653.) Therefore, the appellate court affirmed the trial court’s judgment in favor of
the insurance company.

                                             27
       We disagree with the insurers that these cases set forth a blanket rule that if a
cause of action is related to sexual molestation it must be excluded from insurance
coverage. This interpretation would gloss over the finer nuances of the law governing an
insurer’s duty to defend. For example, Horace Mann reiterated that “[i]f the parties to a
declaratory relief action dispute whether the insured’s alleged misconduct should be
viewed as essentially a part of a proven sexual molestation, or instead as independent of it
and so potentially within the policy coverage, . . . then factual issues exist precluding
summary judgment in the insurer’s favor. Indeed, the duty to defend is then established.”
(Horace Mann, supra, 4 Cal.4th at p. 1085.)
       Unlike the scenarios contemplated in Jane D. and Coit, Gonzalez’s complaint did
not necessarily set forth allegations that were inseparably intertwined with Rebagliati’s
purported sexual assault. The aforementioned cases involved only one defendant, with
causes of actions based upon the one defendant’s alleged acts. Here, Gonzalez’s
complaint raised the possibility that other individuals--and not Rebagliati--perpetrated the
assault. Perhaps if it was known to Truck that Rebagliati had admitted to the molestation,
any cause of action for slander based on the assault might have “arisen” out of his
molestation of Gonzalez and would therefore be properly excluded from coverage.
However, we have no such admission before us here; therefore, we decline to address
whether all of Gonzalez’s claims would necessarily be inseparably intertwined with the
underlying sexual molestation and would therefore be subject to exclusion on that
ground.
       Furthermore, in Horace Mann, Coit, and Jane D., the underlying molestation
allegations were either admitted by the accused or otherwise proven by extrinsic
evidence. Here the insurers have not demonstrated they had conclusive proof that
molestation by their insured, Rebagliati, occurred prior to refusing the defense. Nor did
defendant admit he committed any of the alleged acts prior to tendering his defense.

                                             28
       The insurers argue that Rebagliati’s denial of wrongdoing is irrelevant to
determine coverage. We agree, as it is the facts alleged in the complaint, and any
extrinsic evidence known to the insurer, that determines whether coverage applies.
However, when the insured meets his or her relatively low burden to demonstrate that a
possibility for coverage exists on a motion for summary judgment, it is up to the insurer
to conclusively demonstrate an exclusion applies. Truck simply fails to meet its burden.6
       Therefore, the trial court erred in granting summary judgment in favor of Truck.
                                      DISPOSITION
       The judgment is reversed. On remand, the trial court is directed to enter an order
denying the motion for summary judgment as to Truck Insurance Exchange and granting
the motion for summary judgment as to Fire Insurance Exchange. All parties shall bear
their own costs on appeal.


                                                             Premo, J.


       WE CONCUR:



              Rushing, P.J.



              Elia, J.




       6
         We reiterate that here we are concerned with the insurers’ duty to defend its
insured from a claim that seeks damages that can be potentially covered under the policy.
This is broader in scope than the duty to indemnify. (Quan, supra, 67 Cal.App.4th at pp.
590-591.)


                                            29
Filed 3/4/15


CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                             SIXTH APPELLATE DISTRICT


JESSICA GONZALEZ,                                  H039368
                                                  (Santa Clara County
        Plaintiff and Appellant,                   Super. Ct. No. 1-11-CV215537)


        v.


FIRE INSURANCE EXCHANGE et al.,


        Defendants and Respondents.




BY THE COURT:


        The opinion which was filed on February 5, 2015, is certified for publication.


                                          _____________________________
                                                        Premo, Acting P.J.,
                                          _____________________________
                                                        Elia, J.
       The written opinion which was filed on February 5, 2015, has now been certified
for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is
therefore ordered that the opinion be published in the official reports.




Dated:                                  ______________________________________
                                                      Premo, Acting P.J.




                                           2
Trial Court:                        Santa Clara County Superior Court
                                    Superior Court No. 1-11-CV215537


Trial Judge:                        Hon. Mark H. Pierce


Counsel for Plaintiff/Appellant:    Adleson, Hess & Kelly
Jessica Gonzalez                    Randy M. Hess
                                    Pamela A. Bower




Counsel for Defendant/Respondent:   Becherer Kannett & Schweitzer
Fire Insurance Exchange             Lori A. Schweitzer
Truck Insurance Exchange            Dolores Bastian Dalton
                                    Susan Beneville
