
    BULLPEN DISTRIBUTION, INC. and John Brill, Plaintiffs-Appellants, v. SENTINEL INSURANCE COMPANY, LIMITED, Defendant-Appellee.
    No. 12-16369.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 12, 2014.
    Filed Sept. 10, 2014.
    
      Sayeed Ashar Ahmed, Esquire, Kurt W. Melchior, Nossaman, LLP, San Francisco, CA, for Plaintiffs-Appellants.
    Stephen Paul Ellingson, Esquire, Stephen M. Hayes, Esquire, Hayes Scott Bon-ino Ellingson & McLay, LLP, Redwood City, CA, for Defendant-Appellee.
    Before: FARRIS and REINHARDT, Circuit Judges, and HUCK, Senior District Judge.
    
    
      
       The Honorable Paul C. Huck, Senior District Judge for the U.S. District Court for Southern Florida, sitting by designation.
    
   MEMORANDUM

Bullpen Distribution, Inc. (“Bullpen”) appeals the district court’s grant of Sentinel Insurance Co., Ltd.’s (“Sentinel’s”) motion to dismiss Bullpen’s suit for breach of insurance contract, bad faith failure to defend, and declaratory relief. California’s substantive insurance law governs this diversity case. Freeman v. Allstate Life Ins. Co., 253 F.3d 533, 536 (9th Cir.2001). We review the district court’s order de novo, Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.2010), and we affirm.

1. The business liability insurance that Bullpen purchased from Sentinel provided that Sentinel would defend Bullpen against any suit seeking damages for “personal and advertising injury.” The policy defined “personal and advertising injury” as injury arising out of “[o]ral, written or electronic publication of material that ... disparages a person’s or organization’s goods, products or services.” Bullpen was sued by A.Y. International, Inc. (“AYI”) for a number of causes of action including intentional interference with prospective economic advantage, untrue and misleading advertising, and unfair competition. In its complaint, AYI alleged, among other things, that Bullpen’s website “made false and misleading statements by which [Bullpen] sought to take credit for AYI’s business practices as if they were their own,” to “pass off [AYI’s] achievements as their own,” and to pass off AYI’s “business relationships and practices” and “track record ... of paying customers promptly” as their own.

2. “An insurer owes a broad duty to defend against claims that create a potential for indemnity under the insurance policy.” Hartford Cas. Ins. Co. v. Swift Distribution, Inc., 59 Cal.4th 277, 287, 172 Cal.Rptr.3d 653, 326 P.3d 253 (2014). “Determination of the duty to defend depends, in the first instance, on a comparison between the allegations of the complaint and the terms of the policy.” Id. (internal citation omitted). Here, Sentinel’s duty to defend Bullpen is triggered if AYI’s suit creates potential liability for disparagement.

3. Under California law, disparagement means “a knowingly false or misleading publication that derogates another’s property or business and results in special damages.” Id. at 291, 172 Cal.Rptr.3d 653, 326 P.3d 253. “A false or misleading statement (1) must specifically refer to plaintiffs product or business, and (2) must clearly derogate that product or business. Each requirement must be satisfied by express mention or by clear implication.” Id. The specific reference requirement may be satisfied by implication “where the suit alleges that the insured’s false or misleading statement necessarily refers to and derogates a competitor’s product.” Id. at 294, 172 Cal.Rptr.3d 653, 326 P.3d 253 (emphasis added). “What distinguishes a claim of disparagement is that an injurious falsehood has been directed specifically at the plaintiffs business or product, derogating that business or product and thereby causing that plaintiff special damages.” Id.

4. Here, Bullpen alleges that AYI’s complaint constitutes a claim for disparagement by implication. However, there is no specific reference to AYI in Bullpen’s public statements, nor is AYI “necessarily” referred to or made the subject of derogation. Whereas in E.piphany, Inc. v. St. Paul Fire & Marine Ins. Co., 590 F.Supp.2d 1244, 1253 (N.D.Cal.2008), an advertiser falsely stated that it was the “only” producer of certain types of software, and thus “necessarily suggested] that competitor products did not have such capabilities,” here, as alleged by AYI, Bullpen’s claims regarding its business achievements and history do not necessarily imply that AYI did not also have those achievements, history, or a capacity similar to Bullpen’s, even though some of AYI’s employees left and formed Bullpen. In short, there is no “clear or necessary inference” sufficient to support a claim for disparagement by “reasonable implication.” Swift Distribution, 59 Cal.4th at 295, 172 Cal.Rptr.3d 653, 326 P.3d 253.

5. To the extent that AYI’s claim might be viewed as asserting that Bullpen attempted to pass off AYI’s business history and accomplishments as its own — and the complaint is rife with such suggestions — this alone, without statements that Bullpen “directly cast aspersions” on AYI, does not constitute disparagement. Id. at 296, 172 Cal.Rptr.3d 653, 326 P.3d 253 (internal citation omitted). “There is no coverage for disparagement simply because one party tries to sell another’s goods or products as its own.” Id.

6. The duty to defend may be triggered where “the precise causes of action pled by the third party complaint may fall outside policy coverage” but “under the facts alleged, reasonably inferable, or otherwise known, the complaint could fairly be amended to state a covered liability.” Id. at 287, 172 Cal.Rptr.3d 653, 326 P.3d 253 (internal citation omitted). Bullpen, however, makes no assertion that the complaint could be so amended. Thus, because Bullpen has not shown that AYI’s complaint alleges disparagement on its face or by reasonable implication, and has not alleged that the complaint could be amended to do so, Bullpen has failed to demonstrate a potential for coverage under the policy. Sentinel therefore had no duty to defend, and Bullpen’s complaint was properly dismissed.

AFFIRMED 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     