PACIFIC COAST SURGICAL CENTER, L.P., a California limited partnership v. SCOTTSDALE INSURANCE COMPANY, an Ohio corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PACIFIC COAST SURGICAL CENTER,
L.P., a California limited partnership,
Plaintiff-Appellant,
v.
SCOTTSDALE INSURANCE
COMPANY, an Ohio corporation,
Defendant-Appellee.
No. 19-55847
D.C. No.
2:18-cv-03904-PSG-KS
MEMORANDUM
*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Submitted September 3, 2020
**
Pasadena, California
Before: GOULD and IKUTA, Circuit Judges, and EZRA,
***
District Judge.

FILED
OCT 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
* * *
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

Pacific Coast Surgical Center, L.P. (“Pacific Coast”) appeals a district court
decision granting summary judgment in favor of Scottsdale Insurance Company
(“Scottsdale”). Scottsdale, who issued a business and management indemnity
policy to Pacific Coast, determined that there was no coverage for two underlying
lawsuits filed against Pacific Coast because those lawsuits were claims arising out
of the same wrongful acts as a claim first made outside the policy period. The
district court concluded that Scottsdale properly declined coverage, finding that
there was no genuine dispute of fact that Pacific Coast received a settlement
demand letter from one plaintiff (the “Lu Letter”) in the related actions before the
policy period began. For the reasons stated below, we affirm.
The district court did not err in finding that the Lu Letter was a “claim”
under the policy, which defined a claim as, among other things, “a written demand
against any Insured for monetary damages or non-monetary or injunctive relief.”
Under California law, whether something is a “claim” depends on the “claimant’s
formal demands for service or payment” and the law “does not recognize a request
for an explanation, the expression of dissatisfaction or disappointment, mere
complaining, or the lodging of a grievance as a claim.” Abifadel v. Cigna Ins. Co.,
8 Cal. App. 4th 145, 160 (1992). A “demand” is defined as “a request for
something under an assertion of right or an insistence on some course of action.”
Westrec Marina Mgmt., Inc. v. Arrowood Indem. Co., 163 Cal. App. 4th 1387,
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1392 (2008). As such, we affirm the district court’s finding that the Lu Letter was
an assertion of a legal right, not a request merely intending to “clarify” an
interpretation of the agreement and not simply a “strong statement of one’s
position” by counsel. Id.
AFFIRMED.

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