TRENCHES, INC. V. HANOVER INSURANCE CO, No. 12-56642 (9th Cir. 2014)
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FILED MAY 23 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TRENCHES, INC., a California corporation; et al., No. 12-56642 D.C. No. 8:12-cv-00627-AG-RNB Plaintiffs - Appellants, MEMORANDUM* v. HANOVER INSURANCE COMPANY, a New Hampshire corporation, Defendant - Appellee. Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding Argued and Submitted May 16, 2014 Pasadena, California Before: PREGERSON and NGUYEN, Circuit Judges, and TIGAR, District Judge.** Trenches appeals the district court s judgment dismissing its suit against Hanover Insurance Company ( Hanover ), Trenches s liability insurer. Trenches * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jon S. Tigar, District Judge for the U.S. District Court for the Northern District of California, sitting by designation. claims that Hanover wrongfully refused to defend it against a third-party lawsuit. We have jurisdiction under 28 U.S.C. ยง 1291, and we affirm. The policy s breach of contract exclusion precluded coverage of any potentially covered claim arising out of Trenches s alleged breach of the Franchise Agreements and Settlement Agreement. In California, the phrase arising out of is construed broadly, even if in an exclusion, to mean originating from, flowing from, incident to, or having a connection with. Davis v. Farmers Ins. Group, 134 Cal. App. 4th 100, 106 07 (2005) (quoting Fibreboard Corp. v. Hartford Accident & Indem. Co., 16 Cal. App. 4th 492, 503 04 (1993)). Here, the underlying complaint filed against Trenches specifically alleged that Trenches violated its contractual obligations by continuing to use the third party s mark and trade dress. Thus, the claims against Trenches fall within the exclusion for claims arising out of a breach of contract. Finally, the district court did not err in denying Trenches s request for judicial notice. See Fed. R. Evid. 201. AFFIRMED.
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