MEMORANDUM**

Daniel Joseph Anderson's ("Anderson") estate, together with Jane, Michael, and Kate Fennelly ("the Fennelly children"), three children sexually molested by Anderson, appeal in an action for declaratory relief initiated by State Farm Fire and Casualty Company ("State Farm"). The district court granted State Farm's motion for summary judgment. We affirm.

Anderson began living with Darrolyn Fennelly ("Fennelly") and her three children from a previous marriage in 1973. In 1978, Anderson and Fennelly were married. From September 1976 until his death in July 1985, Anderson was insured by State Farm under a standard homeowner's policy. Anderson repeatedly sexually molested the Fennelly children, particularly the two girls, while living with the family. Fennelly separated from Anderson upon learning of the molestation in late 1984, and reported him to the authorities. Anderson was charged with 212 counts of sexual molestation, including violations of Cal.Penal Code Secs. 288(a), 261.5, 647.6 (West 1988). He committed suicide in July 1985, before the criminal proceedings against him were completed. The Fennelly children sued Anderson's estate ("the Estate") in 1986 for damages caused by Anderson's acts of sexual molestation against them. The parties eventually settled, and the Fennelly children sought payment of a substantial portion of the settlement amount from State Farm under Anderson's homeowner's policy. In this diversity action, State Farm sought declaratory relief, asserting that it was not obligated to pay for damages caused by Anderson's sexual molestation of the Fennelly children.

Central to the dispute is the interpretation of the term "willful" under Cal.Ins.Code Sec. 533 (West 1975), which states that "[a]n insurer is not liable for a loss caused by the wilful act of the insured ..." Section 533 applies to all insurance contracts in California, "and is equivalent to an exclusionary clause in the contract itself." Evans v. Pacific Indem. Co., 49 Cal.App.3d 537, 540, 122 Cal.Rptr. 680, 682 (1975). Anderson's insurance policy contained a clause that excluded from coverage "bodily injury or property damage which is expected or intended by the insured."

Citing one line of California cases, the Estate contends that Anderson's acts were not willful within the meaning of section 533, Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978), and that, when determining willfullness, the district court should have considered Anderson's state of mind at the time he committed the acts, Congregation of Rodef Sholom of Marin v. American Motorists Ins. Co., 91 Cal.App.3d 690, 696-97, 154 Cal.Rptr. 348, 352 (1979).

Contrary to the Estate's assertions, California and most other states "infer[ ] a specific intent to injure as a matter of law from the fact of sexual misconduct with a minor." Fire Ins. Exch. v. Abbott, 204 Cal.App.3d 1012, 1026, 251 Cal.Rptr. 620, 629 (1988). Allstate Ins. Co. v. Kim W., 160 Cal.App.3d 326, 332-33, 206 Cal.Rptr. 609, 613 (1984). That inference may not be overcome by evidence of a subjective lack of intent to harm. Abbott, 204 Cal.App.3d at 1029, 251 Cal.Rptr. at 630. This court's analysis comports with the decisions in Kim W. and Abbott See State Farm Fire & Casualty Co. v. Estate of Jenner, 874 F.2d 604 (9th Cir.1989), vacating on rehearing 856 F.2d 1359 (9th Cir.1988), State Farm Fire & Casualty Co. v. Abraio, 874 F.2d 619 (9th Cir.1989). We have held California's inference of intent to be an "irrebuttable presumption of intent to harm if the insured could form the intent to act." Abraio, 874 F.2d at 622.

The Estate's attempt to distinguish this case from these precedents on the basis that Anderson was not convicted and did not admit guilt fails. The record contains sufficient evidence that he committed the acts. Therefore, we hold that, as a matter of law, Anderson's acts of molestation against the Fennelly children were not covered under Anderson's homeowner's policy.

AFFIRMED.