The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT CASUALTY
Plaintiff moves for partial summary judgment against its insurer, Defendant Travelers Property Casualty Company of America ("Defendant"), on its third claim for declaratory relief. Specifically, Plaintiff seeks a declaration that Defendant has a duty to defend a cross-complaint filed against it in a pending state court action. Defendant filed a cross motion for summary judgment, arguing it does not owe Plaintiff a defense, and therefore, is entitled to judgment on Plaintiff's claims.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is satisfied, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis omitted). When deciding a summary judgment motion, all reasonable inferences that can be drawn from the evidence "must be drawn in favor of the non-moving party." Bryan v. McPherson, --- F.3d ----, 2010 WL 2431482, at *2 (9th Cir. 2010).
A. The Underlying Litigation and Tender of Defense
In the underlying state court litigation involved with Plaintiff's tender of defense, Kellie Warnick and her mother, Ann Michael, filed a complaint against Premier Resorts International, Inc. dba Lakeland Village Beach and Mountain Resort ("PRI"), and Francis Hollow ("Hollow") that concerns a wedding reception Ms. Warnick hosted at Lakeland Village. (Def.'s Response to Pl.'s Separate Statement of Undisputed Facts ("SUF") # 1-2.)
Hollow, who owns a town home in Lakeland Village, called the police and complained about noise at the reception. (Pl.'s Evid., Ex. 1, ¶16, Ex. 7, ¶ 1.) The police responded and took action that resulted in the termination of the wedding reception. (Id.)
Hollow answered the state court action and filed a cross-complaint against Plaintiff and PRI for indemnity, contribution and declaratory relief. (Def.'s Response to Pl.'s Separate Statement of Undisputed Facts ("SUF") # 3.) Hollow subsequently filed a First-Amended Cross-Complaint, which added a nuisance claim. (SUF # 10.) Hollow alleges in the nuisance claim that non-property owners used Lakeland Village's common areas for weddings, wedding receptions and similar events, wherein loud music was played that interfered with Hollow's quiet use and enjoyment of his property. (SUF #11.)
Plaintiff tendered its defense of Hollow's First-Amended Cross-Complaint to Defendant in early 2007. (SUF #18.) Defendant denied the tender on April 9, 2007. (SUF #19.) Hollow later filed a Second-Amended Cross-Complaint ("Cross-Complaint"), which deleted his indemnity claim. (SUF #15.)
B. The Applicable Insurance Policy
The insurance policy under which the tender was made provides in relevant part: "We will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal injury'... to which this insurance applies. We will have the right and duty to defend the insured against any 'suit' seeking those damages." (Pl.'s Evid., Ex. 12, at 1.) "Personal injury" is defined to include "injury, other than 'bodily injury,' arising out of... the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord or lessor." (Id., at 3.)
The parties dispute whether or not Defendant owes Plaintiff a defense of Hollow's Cross-Complaint. Plaintiff seeks a declaration that Defendant has a duty to defend it, arguing Hollow's nuisance claim is covered by the policy's coverage for injury arising out of "invasion of the right of private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord or lessor...." (Pl.'s P.&A. in Supp. of Mot. for Partial Summ. J. ("Mot.") 8:9-19.) Defendant rejoins that it does not owe Plaintiff a defense because "invasion of the right of private occupancy," requires a physical invasion, and "[n]oise simply is not a physical invasion of the right to private occupancy in California." (Def.'s P.&A. in Opp'n to Pl.'s Mot. for Summ. J. ("Opp'n") 9:8-10, 10:20-21.) Defendant further counters that it does not owe Plaintiff a defense since the ...