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Civil Service Employees Insurance Co. v. Superior Court of San Francisco County6/30/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. INTRODUCTION
Civil Service Employees Insurance Co. (CSE) seeks review by extraordinary writ of an order of the superior court denying its motion for summary judgment against real party in interest Jay Tobin (Tobin). Tobin had sued CSE for damages for breach of a policy of insurance issued by CSE covering San Francisco rental property owned by him. In his action, Tobin claimed that CSE wrongfully failed to defend him in a wrongful eviction action brought by three former tenants of Tobin's. In its motion for summary judgment, CSE contended that it had no duty to defend Tobin because there was no "accident" alleged in the underlying action. The lower court disagreed and denied summary judgment. By an order filed December 23, 2003, we issued an alternative writ and an order to show cause and also stayed all further proceedings in the superior court. That court declined to modify its order and Tobin filed a return to the petition. After due consideration, including oral argument on the matter, we grant the petition and direct the superior court to vacate its order denying CSE's motion for summary judgment and enter a new and different order granting that motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
Tobin, a resident of Mill Valley, owns rental property located at 636 14th Street in San Francisco. In July 1997, he leased a four-bedroom apartment in that building to five individuals, including Robert Douglas. Sometime in September 2000, Tobin went to the apartment after being advised by Douglas that a newly acquired puppy had damaged the hall carpet. Tobin went both to inspect the damage and to advise the tenants that dogs were not permitted on those premises under their lease. While there, Tobin met Jerry Thompson, an "unauthorized subtenant" at the apartment, of whom, up to that point, Tobin had not known. Thompson allegedly advised Tobin that the dog, a German Shepherd named "Teofila," was a "service dog" from which, according to Douglas and Thompson's later complaint against Tobin, "they derived companionship and comfort in alleviation of the hardships imposed by their respective disabilities." Again according to that later complaint, those disabilities were cerebral palsy (Douglas) and chronic clinical depression (Thompson). Tobin's version of events was that he was never told by either Douglas or Thompson that the dog was a "service" or "companion" dog and that, in fact, Thompson had denied it was such.
In any event, apparently the preceding month Tobin decided that he needed the apartment in question vacated so it could be made available for his son and daughter-in-law. To that end, on September 20, 2000, Tobin served a "Thirty-Day Notice" to terminate tenancy on Douglas by giving a copy of it to Thompson. Douglas believed this notice was being served because of the presence of the dog in the apartment, and both called and wrote Tobin complaining about that. Tobin replied by letter dated September 29, 2000, that Douglas's information was incorrect and that his tenancy was being terminated because he needed the apartment for his son and daughter-in-law. (Those two did, indeed, later occupy the apartment.)
On November 3, 2000, the date the tenancy was to have ended pursuant to the thirty-day notice, Tobin found Thompson still in the apartment. Thompson indicated, however, that he and Douglas were
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