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Namm v. Fire Insurance Exchange3/11/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
By this appeal, the owner of an apartment building in Martinez and her daughter appeal from the Marin Superior Court's entry of judgment against them in their suit against two insurance companies (hereafter respondents) who refused to defend or (with a minor exception) indemnify them in two tort actions. Those underlying actions were brought, first of all, by the husband-and-wife former managers of the building and, second, by another individual allegedly employed to do maintenance work at the building. Sustaining a demurrer to an amended complaint without leave to amend, the lower court found that none of the policies issued by respondents provided coverage for the alleged torts sued upon in the underlying actions. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because we are reviewing a judgment entered after the sustaining of a demurrer without leave to amend, the following factual statement below is drawn principally from appellants' first amended complaint. However, we will also incorporate additional facts set forth by appellants in their oppositions to both the original complaint and the first amended complaint. Additionally, because appellants attached the complaints in the underlying lawsuits to both of their complaints against the respondents--indeed incorporated those pleadings by reference therein--we will also include facts alleged in those underlying complaints.
Plaintiff and appellant Hilda Namm (hereafter Hilda) lives in Marin County and owns, either individually or through an unincorporated entity known as Namm Properties, an apartment building in Martinez known as Regency Plaza Apartments. Appellant Evelyn Namm (hereafter Evelyn) is Hilda's daughter and resides in Sonoma County. In their pleadings, appellants deny that Evelyn was, during the relevant time period, an employee of her mother, Hilda, although elsewhere in their pleadings they admit that Evelyn assisted in the management of the Regency Plaza Apartments.
On February 3, 1999, two first amended complaints were filed in Contra Costa County Superior Court against both appellants. The first was filed by plaintiffs Frank and Debora Foster, former resident managers of the Regency Plaza Apartments, and the second by one Stephen Mair, allegedly a former maintenance worker --albeit for only two weeks--at those apartments. The Fosters' complaint named one Michael Becker, allegedly a property manager for Hilda's Namm Properties, as an additional defendant, while the Mair complaint named Becker and another alleged property manager for Namm Properties, Daniel Magnolo, as additional defendants.
Both the Fosters' lawsuit and Mair's lawsuit were prosecuted by the same firm of San Francisco-based attorneys.
The Fosters' complaint alleged that the couple was hired "as a husband and wife apartment manager team" in March 1994 and served in that capacity until terminated by appellants and their property manager, Becker, four years later, i.e., in March 1998. The reasons for the termination, it was alleged, were Frank Foster's refusal to submit to Evelyn's repeated (and, according the Fosters' complaint, quite explicit) sexual advances and Debora Foster's vocal objections to the reports of those advances. The Fosters' complaint alleged that Frank Foster's duties included performing maintenance
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