ALORICA, INC. V. STARR SURPLUS LINES INS. CO., No. 20-55458 (9th Cir. 2021)

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NOT FOR PUBLICATION FILED APR 9 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ALORICA, INC., a California corporation, Plaintiff-Appellant, No. U.S. COURT OF APPEALS 20-55458 D.C. No. 8:19-cv-00690-JVS-KES v. STARR SURPLUS LINES INSURANCE COMPANY, a Texas Corporation, MEMORANDUM* Defendant-Appellee. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Submitted April 6, 2021** Pasadena, California Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges. Alorica, Inc. argues that a letter from Express Scripts to Alorica dated September 25, 2018, constitutes a “claim” against Alorica under the terms of Alorica’s insurance policy with Starr Surplus Lines Insurance Company. The * 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). Page 2 of 3 district court rejected that argument and granted summary judgment to Starr. We affirm. In relevant part, the policy defines a “claim” as a “written demand for monetary or non-monetary relief.” Express Scripts’ letter does not fall within that definition. The letter rejects Alorica’s demand for $4.8 million. A refusal to accept a demand is not itself a demand; it is only a refusal. Express Scripts’ letter does not ask Alorica to do anything at all. Quite the opposite: The letter declares Express Scripts’ unconditional willingness to “cooperate reasonably in any investigation” into the underlying computer fraud, and to pay Alorica $56,791, with no consideration from Alorica expected or requested. Alorica characterizes Express Scripts’ refusal to pay as a request that Alorica forgive a debt, and argues that Express Scripts’ letter therefore constitutes a “demand for monetary relief.” But the letter could be characterized as a request to forgive a debt only if Express Scripts in fact owed a debt in the first place. Express Scripts denies that it owes Alorica $4.8 million, and indeed Alorica has made no further effort to collect this money. In each of the cases on which Alorica relies, a “demand” or “claim” arose when someone asked the insured party for money or to work for free. See, e.g., Westrec Marina Mgmt., Inc. v. Arrowood Indem. Co., 78 Cal. Rptr. 3d 264, 268 (Ct. App. 2008) (“The attorney’s request for compensation while threatening Page 3 of 3 litigation was a ‘demand[.]’”); Phoenix Ins. Co. v. Sukut Constr. Co., 186 Cal. Rptr. 513, 514 (Ct. App. 1982) (“Sukut asked Malter to work without pay to correct the problem with the lien.”); Presidio Wealth Mgmt., LLC v. Columbia Cas. Co., 2014 WL 1341696, at *1 (N.D. Cal. Apr. 3, 2014) (holding that investors’ “demand[] that Presidio return their funds . . . constituted a claim”). Alorica cites no case in which the refusal of another’s demand, without more, has been held to constitute a demand. Accordingly, we agree with the district court that Express Scripts’ letter was not a “claim” under the insurance policy with Starr.1 AFFIRMED. 1 As we affirm based on the meaning of “claim,” we do not address the parties’ arguments regarding whether there was a “security failure” or Starr’s alternative grounds for affirmance.