Government Employees Insurance Company v. Anshuman Nadkarni and Renuka Nadkarni

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOVERNMENT EMPLOYEES INSURANCE
COMPANY,
Plaintiff-Appellee,
v.
ANSHUMAN NADKARNI AND RENUKA
NADKARNI,
Defendants-Appellants.
No. 20-15947
D.C. No. 3:19-cv-01302-LB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Laurel Beeler, Magistrate Judge, Presiding
Argued and Submitted March 17, 2021
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,** District
Judge.
Anshuman and Renuka Nadkarni appeal from the district court’s summary
judgment declaring that Government Employees Insurance Company (“GEICO”)
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
APR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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had no duty to defend or indemnify the Nadkarnis and awarding GEICO
reimbursement of defense costs. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
In 2017, the Nadkarnis purchased a property in San Francisco. On March 13,
2018, the Nadkarnis sent notice to their month-to-month tenants, the Venegases,
that they were terminating the tenancy to move into the unit themselves. Though
the Nadkarnis gave the Venegases until May 12, 2018 to vacate, the Venegases and
Nadkarnis agreed to end the tenancy at the end of April so the Venegases could
avoid paying rent in May.1 The Venegases vacated the unit no later than April 29,
2018, and the Nadkarnis took possession on May 1, 2018, at the latest.
After completing the eviction, the Nadkarnis purchased an insurance policy
from GEICO that insured against wrongful evictions. The policy applied only to
“personal injury,” defined to include “injury arising out of . . . wrongful eviction,”
“during the time this policy is in force”— May 8, 2018 to May 8, 2019. In
November 2018, the Venegases sued the Nadkarnis for wrongful eviction after
discovering that the Nadkarnis were not residing in the unit as stated in the eviction
notice. GEICO defended under a reservation of rights and filed this action,
asserting that the “personal injury” occurred before the start of the policy period.
1 The Nadkarnis dispute that the tenancy was terminated at the end of April but viewing the evidence in the light
most favorable to the Nadkarnis there is no genuine dispute of material fact on this point.

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The district court agreed and granted summary judgment in GEICO’s favor, which
we review de novo. Universal Cable Prods., LLC v. Atl. Specialty Ins. Co., 929
F.3d 1143, 1151 (9th Cir. 2019).
Under California law, which governs, Freeman v. Allstate Life Ins. Co., 253
F.3d 533, 536 (9th Cir. 2001), “‘[b]ecause the interpretation of an insurance policy
is a question of law, this Court must make its own independent determination of
the meaning of the relevant contract language.’” Universal Cable Prods., LLC, 929
F.3d at 1151 (quoting Conestoga Servs. Corp. v. Exec. Risk Indem., Inc., 312 F.3d
976, 981 (9th Cir. 2002)). “To determine whether the duty to defend is present, a
court ‘compar[es] the allegations of the third party complaint with the terms of the
policy.’” Cort v. St. Paul Fire & Marine Ins. Cos., 311 F.3d 979, 983 (9th Cir.
2002) (quoting El-Com Hardware, Inc. v. Fireman’s Fund Ins. Co., 111 Cal. Rptr.
2d 670, 675 (Ct. App. 2001)). Where there is no duty to defend, there is no duty to
indemnify. Certain Underwriters at Lloyd’s of London v. Superior Court, 16 P.3d
94, 102 (Cal. 2001) (citing Buss v. Superior Court, 939 P.2d 766, 773 n.10 (Cal.
1997)).
Here, the policy unambiguously provided coverage only if the “personal
injury” occurred during the policy period of May 8, 2018 to May 8, 2019. The
personal injury inflicted on the Venegases, however, occurred before the policy
period. The Venegases moved out of the unit and lost any right to possess it on

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May 1, 2018 at the latest. Because the injury arising out of wrongful eviction was
complete before the policy period began, GEICO owed no duty to defend or
indemnify and was entitled to reimbursement of defense costs.
The Nadkarnis contend that the eviction was legal at the time they
completed it and could not have become unlawful under the San Francisco Rent
Ordinance until, at the earliest, three months later, when the Nadkarnis failed to
move into the unit. But by the time the eviction was complete, there was already
evidence of the Nadkarnis’ improper motive for eviction. Moreover, the
Nadkarnis’ argument misreads the Ordinance, which prohibits “endeavor[ing] to
recover possession of a rental unit unless” an approved reason applies, one of
which is when the landlord wishes to reside in the unit. S.F. Admin. Code
§ 37.9(a)(8). The landlord’s failure to move in within three months of taking
possession is merely “[e]vidence that the landlord has not acted in good faith.” Id.
§ 37.9(a)(8)(v); cf. Swain v. Cal. Ins. Co., 99 Cal. App. 4th 1, 9 (2002) (rejecting
argument that under similar ordinance, eviction “only became illegal after the fact
when the [landlords] failed to move into the premises themselves”). Thus, the
eviction was wrongful at the time it was complete on May 1, 2018, and the
Nadkarnis’ later failure to timely move into the unit was merely one more piece of
evidence of their wrongful intent.
AFFIRMED.

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