Hewlett-packard Company v. Ace Property and Casualty Insu , 378 F. App'x 658 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 05 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HEWLETT-PACKARD COMPANY, a No. 09-15880
corporation,
D.C. No. 5:07-cv-04676-JW
Plaintiff - Appellant,
v. MEMORANDUM*
ACE PROPERTY AND CASUALTY
INSURANCE COMPANY, a corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Submitted April 13, 2010**
San Francisco, California
Before: KOZINSKI, Chief Judge, NOONAN and CALLAHAN, Circuit Judges.
Hewlett Packard Company (“HP”) appeals the dismissal of its claim for bad
faith breach of the duty to defend against ACE Property and Casualty Insurance
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Company (“ACE”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and our
review is de novo. Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999).
The two-year statute of limitations on HP’s claim was tolled until the
underlying action was terminated by final judgment. Lambert v. Commonwealth
Land Title Ins. Co., 811 P.2d 737, 739 (Cal. 1991). Here, judgment was entered in
the underlying action on April 5, 2000, and HP did not file its bad faith claim until
two years and twelve days after that date. Although ACE never unequivocally
rejected HP’s tender, the underlying action concluded without ACE undertaking
HP’s defense. Thus, there was no question that ACE had refused the defense, and
that the statute began to run on that date. Accordingly, HP’s claim was untimely
filed.
HP is not entitled to further tolling of the statute since this case is governed
by Lambert rather than cases involving the more liberal tolling principles applied
in “several remedies” cases. See Daviton v. Columbia/HCA Healthcare Corp., 241
F.3d 1131, 1137-38 (9th Cir. 2001) (en banc) (explaining California’s test for
equitable tolling in “several remedies” cases).
AFFIRMED.
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