Erika Marinelarena v. Allstate Northbrook Indemnity Company ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIKA MEJIA MARINELARENA, No. 22-55344
Plaintiff-Appellant, D.C. No.
8:20-cv-02230-DOC-JDE
v.
ALLSTATE NORTHBROOK INDEMNITY MEMORANDUM*
COMPANY, an Illinois corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted April 19, 2023**
Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,*** District
Judge.
Erika Mejia Marinelarena (“Marinelarena”) brought this action for breach of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Colleen McMahon, United States District Judge for
the Southern District of New York, sitting by designation.
the covenant of good faith and fair dealing against her car insurer, Allstate
Northbrook Indemnity Company (“Allstate”). After some litigation, the parties
cross-moved for summary judgment. The district court granted Allstate’s motion
for summary judgment and dismissed Marinelarena’s claim as both time-barred
and precluded by her failure to comply with California Insurance Code Section
11580.2(b)(2). A month later, Marinelarena moved for a new trial or
reconsideration of the court’s order granting summary judgment for Allstate. The
district court denied the motion. Marinelarena timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
court’s grant of summary judgment. Lowry v. City of San Diego, 858 F.3d 1248,
1254 (9th Cir. 2017) (en banc). We review the district court’s denial of a motion
for a new trial or reconsideration for abuse of discretion. Hung Lam v. City of San
Jose, 869 F.3d 1077, 1084 (9th Cir. 2017). We affirm.1
1. The district court correctly granted Allstate’s motion for summary
judgment and dismissed Marinelarena’s claim because her claim for bad faith is
time-barred. The statute of limitations in California for a claim asserting breach of
the implied covenant of good faith and fair dealing is two years where, as here, an
insured sues an insurer for extra-contractual damages. Archdale v. Am. Int’l
1
The parties are familiar with the facts of this case, so we include them only as
necessary to resolve the appeal.
2
Specialty Lines Ins. Co., 154 Cal. App. 4th 449, 467 n.19 (2007); CAL. CIV. PROC.
CODE § 339(1) (West 2022). “[A] cause of action accrues and the statute of
limitations begins to run when the plaintiff has reason to suspect an injury and
some wrongful cause.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 803
(2005). The issue is not when Marinelarena actually developed her suspicion, but
when she had sufficient facts to “put her on inquiry.” McGee v. Weinberg, 97 Cal.
App. 3d 798, 803–04 (1979).
The undisputed evidence shows that Marinelarena had reason to suspect that
Allstate was dealing with her in bad faith no later than April 9, 2018. On that date,
Allstate made its allegedly bad faith settlement offer of $8,129. It did so in the
context of a series of prior actions, including Allstate’s alleged failure to act
promptly after receiving notice of her claim, alleged failure to accept or deny
coverage within a reasonable time, and alleged failure to conduct a prompt
investigation—any one of which would have put Marinelarena on notice of her bad
faith claim. Both Marinelarena and her lawyer testified that, by January 2018, they
believed her claim was worth the full policy amount and they would not have
accepted anything less. As a result, the district court correctly concluded that her
claim accrued no later than April 9, 2018. Accounting for the 178-day toll of
3
limitations on civil actions that was in force during the Covid-19 pandemic,2 the
statute of limitations expired on October 5, 2020, seven weeks before she filed her
complaint on November 24, 2020. Allstate was thus entitled to dismissal of
Marinelarena’s complaint as time-barred. See Love v. Fire Ins. Exch., 221 Cal.
App. 3d 1136, 1142–43 (1990) (Where “the operative facts are undisputed, the
question of the application of the statute of limitations is a matter of law, and
summary judgment is proper where the facts show the action is time-barred as a
matter of law.”) (citations omitted).
2. The district court also correctly granted Allstate’s summary judgment
motion because Marinelarena failed to comply with the California Insurance Code
Section 11580.2(b)(2). Marinelarena argues that the district court was wrong to
grant Allstate summary judgment on this alternative ground for two reasons: (1)
the district court should have interpreted the Insurance Code in light of its remedial
purpose and waived the sworn statement requirement; and (2) Allstate had waived
any defects in Marinelarena’s notice of loss so her claim was not precluded under
the policy. However, Marinelarena failed to raise either argument (or any other
2
In response to the Covid-19 pandemic, the Judicial Council of California issued
Emergency Rule 9, which tolled the statutes of limitations for civil causes of action
for 178 days. Specifically, Emergency Rule 9 provided: “Notwithstanding any
other law, the statutes of limitations and repose for civil causes of action that
exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” See Cal. R.
Ct. App. I, Emergency rule 9(a).
4
argument) in her opposition to Allstate’s motion for summary judgment in the
district court. She has, therefore, forfeited these arguments for the purposes of her
appeal from the district court’s order granting Allstate’s motion for summary
judgment. Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006).
3. The district court did not abuse its discretion by denying
Marinelarena’s motion for a new trial or reconsideration of the court’s order
granting Allstate’s motion for summary judgment. Rule 59(a) permits a court to
grant a new trial after a jury trial “on all or some of the issues . . . for any reason
for which a new trial has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a)(1)(A). The district court correctly denied
Marinelarena’s motion for a “new” trial because there was no trial in the first
place. See 11 Charles Alan Wright & Arthur R. Miller and Mary Kay Kane,
Federal Practice and Procedures § 2814 (3d ed.).
Nor did the district court abuse its discretion by denying Marinelarena’s
motion for reconsideration. Marinelarena did not identify any newly discovered
facts or law, error by the court, or intervening change in the controlling law that
rendered her claim timely. Central District of California Local Rule 7-18. She
repeated the arguments made in her opposition to Allstate’s motion for summary
judgment, but that is not proper on a motion for reconsideration. Id.; see also Am.
5
Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 899 (9th Cir.
2001).
Marinelarena also raised for the first time these two arguments relating to
compliance with the California Insurance Code. The district court, having
concluded that Marinelarena failed to identify any error in its dismissal of her bad
faith claim on statute of limitations grounds, declined to reach these new
arguments; they were superfluous, as her bad faith claim was time-barred,
requiring dismissal. This was not error, so we need not reach the merits of these
arguments. Moreover, motions for reconsideration may not be used “to raise
arguments or present evidence for the first time when they could reasonably have
been raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma
GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting Kona Enters., Inc. v.
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). There was no reason
Marinelarena could not have made her two new legal arguments when she filed her
opposition to Allstate’s motion for summary judgment.
AFFIRMED.
6