APPEAL from an order of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. (Los Angeles County Super. Ct. No. BC425314)
The opinion of the court was delivered by: Manella, J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part.
Aroa Marketing, Inc. (Aroa) appeals from an order sustaining a demurrer without leave to amend its complaint against respondent Hartford Insurance Company of the Midwest (Hartford). In the complaint, Aroa alleged that Hartford had breached its duty to defend or indemnify Aroa in an underlying lawsuit, Radcliffe v. Aroa Marketing,Inc., et al. (Super. Ct. L.A. County, 2008 No. 390531) (Radcliffe lawsuit). The trial court interpreted an insurance contract provision that specifically excluded coverage for "personal and advertising injury" arising out of "any violation of any intellectual property rights" as precluding coverage for the Radcliffe lawsuit. We affirm.*fn1
FACTUAL AND PROCEDURAL HISTORY
Hartford had issued a commercial general liability insurance policy to Aroa for the policy period September 9, 2006 to November 1, 2007. The policy covered any damages that Aroa became legally obligated to pay because of "bodily injury," "property damage" or "personal and advertising injury" arising out of Aroa's business. "Personal and advertising injury" was defined to include "'oral or written or electronic publication of material that violates a person's right of privacy.'" Coverage was excluded, however, for "personal and advertising injury" arising out of "'any violation of any intellectual property rights, such as copyright, patent, trademark, trade name, trade secret, service mark, or other destination of origin or authenticity.'"
While the Hartford policy was in effect, Aroa hired a model named Tara Radcliffe to film an exercise video for Aroa's business. According to Radcliffe's complaint, the video was to be used at the consumer electronics show (CES) held in January 2007 and on CES's Internet site. However, Aroa allegedly also used Radcliffe's "image and likeness to sell and market . . . products, including products unrelated to the exercise equipment featured in the [v]ideo, through medi[a] other than CES and its internet site." Upon discovering Aroa's use of her image and likeness in media not named in the written contract, Radcliffe "repeatedly requested that she be compensated for said use." Aroa failed to pay Radcliffe and continued the unauthorized use. In response, Radcliffe sued Aroa for using her "likeness to sell and market products beyond that which was allowed under the contract." She asserted causes of action for "statutory and common law misappropriation of likeness, breach of contract, unjust enrichment and unfair competition." According to Radcliffe, Aroa's actions directly injured her "in that her image and likeness was, and still is [sic], being associated with and taken as an endorsement of the AROA brand and its products such that it diminished her marketability and publicity value as a professional actor and model." She also claimed that as a direct and legal result of Aroa's activities, she was "deprived of her right to publicity."
Aroa requested that Hartford defend and indemnify it against the Radcliffe lawsuit, but Hartford declined in an August 26, 2009 disclaimer of coverage letter. According to Hartford, "[i]t is well settled under California law, both statutory and common law, that, while the right of publicity is derivative from a right of privacy, it is clearly considered an intellectual property right which is specifically excluded from coverage under the Policy." Aroa eventually settled the Radcliffe lawsuit.
On May 20, 2010, Aroa filed its first amended complaint (FAC) against Hartford alleging that Hartford had breached its duty to defend and indemnify Aroa against the Radcliffe lawsuit. Hartford filed a demurrer to the FAC. It asserted the causes of action in the Radcliffe lawsuit did not fall within the scope of the insurance policy's coverage as Radcliffe claimed a violation of her right to publicity and a "right of publicity" claim is not a "right of privacy" claim. Additionally, Hartford argued the causes of action were excluded by the policy's intellectual property rights exclusion.*fn2
The parties filed additional pleadings and the trial court held a hearing on August 16, 2010. On September 2, 2010, the trial court issued an order sustaining the demurrer without leave ...