Arnold v. Metlife Auto & Home Insurance Agency, Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 MARIE A. ARNOLD, Case No. 19-cv-03920-VKD 9 Plaintiff, ORDER GRANTING DEFENDANT 10 v. BRIGHTHOUSE LIFE INSURANCE COMPANY’S MOTION TO DISMISS 11 METLIFE AUTO & HOME INSURANCE THE SECOND AMENDED AGENCY, INC, et al., COMPLAINT 12 Defendants. Re: Dkt. No. 78 13 14 Defendant Brighthouse Life Insurance Company (“Brighthouse”) moves to dismiss the 15 Second Amended Complaint (“SAC”) filed by plaintiff Marie Arnold. The Court held a hearing 16 on the motion on February 4, 2020. Upon consideration of the moving and responding papers,1 as 17 well as the oral arguments presented, the Court grants the motion to dismiss without leave to 18 amend. 19 I. BACKGROUND 20 Ms. Arnold, proceeding pro se, originally filed this action against defendants MetLife 21 Group, Inc. and MetLife Auto & Home Insurance Agency (“MAHIA”) asserting claims for 22 negligence and negligent misrepresentation, as well as a claim under the Fourth Amendment of the 23 U.S. Constitution for alleged invasion of privacy. Ms. Arnold says that, at defendants’ suggestion, 24 1 On January 11, 2020, about a week after Brighthouse filed its reply brief, Ms. Arnold filed a 25 “Reply Opposition.” Dkt. No. 84. Brighthouse correctly notes that Ms. Arnold’s January 11 filing is improper and was filed in violation of Civil Local Rule 7-3(d), which provides that once a 26 reply is filed, and with certain exceptions not applicable here, “no additional memoranda, papers or letters may be filed without prior Court approval . . . .” The Court has nevertheless reviewed 27 Ms. Arnold’s January 11 filing and concludes that it does not change the Court’s ruling on the 1 she filed a First Amended Complaint (“FAC”), to include Brighthouse as an additional defendant.2 2 Dkt. No. 19. Additionally, in the FAC, Ms. Arnold asserted claims for fraudulent concealment, 3 negligent misrepresentation, breach of fiduciary duty, and violation of the Fourth Amendment. To 4 the extent any of her clams were untimely, the FAC asserted that tolling applied. Id. 5 The Court previously granted each defendant’s Rule 12(b)(6) motion to dismiss the FAC, 6 concluding that Ms. Arnold did not allege sufficient facts to support any plausible claim for relief. 7 Dkt. Nos. 61-63. The Fourth Amendment claim for invasion of privacy was dismissed without 8 leave to amend. Ms. Arnold was given leave to amend the claims for fraudulent concealment, 9 misrepresentation, and breach of fiduciary duty. The Court’s orders stated that Ms. Arnold’s 10 amended pleading should include allegations clearly identifying the insurance policy at issue, as 11 well the involvement, if any, each defendant had in the events underlying her claims. 12 Additionally, to the extent Ms. Arnold contended that tolling applied to save any untimely claims, 13 the orders stated that her amended pleading should allege facts showing (1) the time and manner 14 of her discovery of her claims and (2) her inability to have discovered her claims earlier, despite 15 reasonable diligence. 16 Ms. Arnold timely filed her SAC, which now invokes the Court’s diversity jurisdiction 17 under 28 U.S.C. § 1332, and asserts claims for negligence and negligent misrepresentation. Dkt. 18 No. 67. The SAC does not reassert claims for breach of fiduciary duty or fraudulent concealment, 19 although Ms. Arnold continues to assert that matters were “fraudulently concealed.” See, e.g., id. 20 at ECF 5. 21 According to the SAC, Ms. Arnold “was insured by Metlife Group, Inc[.] life insurance” 22 provided by her former employer, Kaiser Permanente (“Kaiser”). Dkt. No. 67 at ECF 3. This 23 “employee Life insurance coverage[]” reportedly became “effective on the first day of the month 24 following [Ms. Arnold’s] date of hire” and ended on the date her employment with Kaiser ended. 25 Id. at ECF 3-4. The SAC further alleges that Ms. Arnold would “have the option to convert this 26 coverage to an individual policy within 31 days of the date on which [her] coverage end[ed].” Id. 27 1 at ECF 4. Ms. Arnold’s employment with Kaiser reportedly began on December 29, 1999 and 2 ended when she voluntarily terminated her employment on May 2, 2012. Id. at ECF 3-4. 3 Ms. Arnold says that her group insurance policy was a “Metlife Basic Life Insurance plan” 4 that provided “$5,000 in employer-paid Basic Life insurance coverage, with a provision for a 5 Total and Permanent Disability (T&PD) Benefit and is bundled with $5,000 yearly total amount 6 $10,000.00[.]” Id. at ECF 3. The SAC’s allegations indicate that these terms are identified in the 7 “Summary Plan Description” (“SPD”) of “a paper copy booklet” Ms. Arnold requested sometime 8 in 2015 during a “phone conversation with a male” in Kaiser’s National Human Resources 9 Services Center. Id. at ECF 3. 10 When her employment with Kaiser ended, Ms. Arnold chose to convert her coverage to an 11 individual insurance policy. Dkt. No. 67 at ECF 4. She met with “(Metlife) MAHIA, Brighthouse 12 Agent” Kevin Lonergan. Id. Although it is not entirely clear, the SAC suggests that Ms. Arnold 13 and Mr. Lonergan met in May 20123 and again in June 2012. Id. at ECF 4-5. Ms. Arnold says 14 that she told Mr. Lonergan that “she was suffering from chronic illness of mental disorder” and 15 “postpartum” and “was curious about [the] amount that [was] going to convert into [an] individual 16 policy.” Id. at ECF 4-5. According to the SAC, “Defendant insisted [on] $50,000 in [a] 17 Metropolitan Life ‘Whole term policy’ to be signed and agreed on,” while Ms. Arnold insisted that 18 the coverage amount “should be more for [the] 12 years and 4 months” that she worked for Kaiser. 19 Id. at ECF 5. She further alleges that she “wanted to continue her earned Basic Term life 20 insurance policy service Earned,” but Mr. Lonergan reportedly told her to “forget about it” and 21 allegedly “induce[d] [Ms. Arnold] into [a] Metlife, MAHIA, Brighthouse ‘whole term policy’ on 22 June 14, 2012.” Id. Based on papers appended to the SAC, the individual policy in question 23 appears to be a “Promise Whole Life” plan, Policy Number 21216479 UT previously referenced in 24 Ms Arnold’s FAC. See Dkt. No. 19 at ECF 11; Dkt. No. 67 at ECF 32. 25 Ms. Arnold now says that Mr. Lonergan “committed negligence on her policy contract” 26 27 3 Although the SAC seems to indicate that Ms. Arnold met with Mr. Lonergan on May 2, 2019, 1 and “did not disclose the true face amount that [she] was entitled to convert from her former 2 employer Metlife Group, Inc. Basic Term life Insurance.” Dkt. No. 67 at ECF 5. Here, Ms. 3 Arnold alleges that after finding the SPD documents in her garage, and “understanding legal 4 rights,” she “discovered that it was more money and entitled offered benefits to life insurance.” 5 Id. Specifically, Ms. Arnold claims that, based on her 12 years and 4 months of service with 6 Kaiser, she was “entitled [to] at least $120,000.00 and . . . [a] Total and Permanent Disability life 7 insurance (TP&D) payout.” Id. The SAC does not say when or how Ms. Arnold reportedly found 8 the SPD documents in her garage or gained an “understanding” of her legal rights. 9 Ms. Arnold further alleges that during two phone calls in March and April 2017, 10 “Defendant (Metlife), MAHIA[,] Brighthouse employee[s]” made negligent misrepresentations by 11 “conceal[ing] facts about whole life [i]nsurance protects employee in events of early accident, 12 chronic illness or disability and take loan before age 65 and provided cash value with penalties 13 surrender charges or lump sum withdrawal.” Dkt. No. 67 at ECF 6, 11. On April 7, 2017, Ms. 14 Arnold reportedly spoke by telephone with Ms. Dorotayo of a Customer Solution Center and 15 “requested a copy of original policy booklet, and copy payments, reinstate[ment of] her policy,” 16 and “to file a claim, cash value withdrawal, take a loan against [her] policy or sell [her] policy.” 17 Id. at ECF 5-6, 11. Ms. Dorotayo allegedly “sen[t] a copy of [the] acknowledgement of Insurance 18 [that Ms. Arnold] requested,” showing a “Whole Term Policy” with a policy date of June 14, 2012 19 and “Face amount of insurance $50,000.” Id. at ECF 6. Ms. Dorotayo reportedly also transferred 20 Ms. Arnold’s phone call to Ms. Mason, who is identified as the “Director Remittance 21 Reconciliation Unit.” Id. at ECF 11. Referencing a prior phone call that reportedly occurred on 22 March 31, 2017, the SAC alleges that Ms. Arnold “requested to reinstate her claim and file a 23 ‘withdrawal’ to take a loan . . . .,” and Ms. Mason allegedly “committed negligent 24 misrepresent[ation] by stating [that Ms. Arnold was] unable to reinstate and denied [her request] to 25 file a claim.” Id. Additionally, Ms. Arnold says that her claim “is still under her Metropolitan 26 Life Insurance Company [and] not Brighthouse,” and that it is “their fault for misleading 27 information that [she] receive[d] in [the] mail.” Id. at ECF 11. Here, the SAC refers to a March 1 for nonpayment of premiums and could not be reinstated. Id. at ECF 11, 34. 2 The SAC further alleges that for any untimely claims, tolling applies under various 3 doctrines due to Ms. Arnold’s claimed mental health issues and because she allegedly did not 4 realize defendants did anything wrong until she found the SPD documents in her garage, or until 5 the March and April 2017 phone calls when her requests to reinstate her individual policy and to 6 file a claim reportedly were denied. 7 Brighthouse moves to dismiss the SAC for failure to state a claim for relief, pursuant to 8 Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brighthouse argues that the SAC still does 9 not allege sufficient facts demonstrating that Ms. Arnold has a plausible claim for relief. 10 Alternatively, Brighthouse contends that Ms. Arnold’s claims are untimely and that tolling does 11 not apply to save her claims. 12 II. LEGAL STANDARD 13 A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal 14 sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 15 Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts 16 alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 17 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be 18 taken as true and construed in the light most favorable to the claimant. Id. 19 However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, 21 “the court is not required to accept legal conclusions cast in the form of factual allegations if those 22 conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness 23 Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 24 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the 25 pleader is entitled to relief.” This means that the “[f]actual allegations must be enough to raise a 26 right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 27 (2007) (citations omitted). However, only plausible claims for relief will survive a motion to 1 draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. A plaintiff 2 does not have to provide detailed facts, but the pleading must include “more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation.” Id. at 678. 4 Documents appended to or incorporated into the complaint or which properly are the 5 subject of judicial notice may be considered along with the complaint when deciding a Rule 6 12(b)(6) motion. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).4 7 III. DISCUSSION 8 A. Negligence 9 1. The SAC does not state a plausible claim for relief. 10 In California, negligence claims require the following elements: (1) a legal duty of care 11 owed by the defendant to the plaintiff; (2) a breach of that duty; (3) causation; and (4) injury to the 12 plaintiff resulting from the breach. See generally Steinle v. United States, No. 16-cv-02859-JCS, 13 2020 WL 60204, at *3 (N.D. Cal. Jan. 6, 2020) (quoting Carrera v. Maurice J. Sopp & Son, 177 14 Cal. App. 4th 366, 377 (2009)). 15 Here, Ms. Arnold says that Mr. Lonergan “failed to disclose details explaining the features 16 of various policies, analyze clients current insurance polic[i]es, suggest additions or changes and 17 help policyholder settle claims.” Dkt. No. 67 at ECF 8. The specific focus of her claim, however, 18 is that Mr. Lonergan allegedly “failed his duty to disclose the ‘true face amount’ of Metlife Group, 19 Inc. policy (Basic Life Term Insurance) [of] at least $120,000 which [Ms. Arnold] had the option[] 20 to convert into [an] ‘individual plan.’” Id. Emphasizing that she “explain[ed] to [Mr. Lonergan] 21 her situation[] about entitlement for claim disability payout,” Ms. Arnold says that Mr. Lonergan 22 “just ignored [her] demands.” Id. Ms. Arnold reportedly “felt uncertain but relied on [Mr. 23 Lonergan’s] sales talk” in signing the individual “Whole Term Policy” with a face amount of 24 4 Brighthouse requests that the Court take judicial notice of materials outside the pleadings or to 25 otherwise consider those matters because they are referenced in the complaint. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998-1003 (9th Cir. 2018) (discussing judicial notice 26 under Fed. R. Evid. 201 and the incorporation by reference doctrine). For the reasons discussed below, the Court concludes that it is unnecessary to do so. Even considering the SAC and all of 27 the materials Ms. Arnold has appended to it, Ms. Arnold fails to state a plausible claim for relief. 1 insurance of $50,000. Id. 2 Ms. Arnold’s alleged injury, however, appears to be based on an unfounded premise. She 3 contends that the Kaiser group policy provided “$5,000 in employer-paid Basic Life insurance 4 coverage, with a provision for a Total and Permanent Disability (T&PD) Benefit and is bundled 5 with $5,000 yearly total amount $10,000.00[.]” Dkt. No. 67 at ECF 3. Here, the SAC relies 6 entirely on text from a “Basic Life Insurance” section in the appended documents, which Ms. 7 Arnold says come from the SPD she received from Kaiser in 2015. Even assuming that those 8 documents describe the terms of the applicable policy in effect during Ms. Arnold’s period of 9 employment with Kaiser, they do not support her claim. And, at the motion hearing, Ms. Arnold 10 acknowledged that she may have misread the subject documents. What the cited portion of the 11 documents actually says is: 12 Your Employee Life Insurance plan provides you with $5,000 in employer-paid Basic Life insurance coverage, with a provision for a 13 Total and Permanent Disability (T&PD) benefit, and is bundled with $5,000 in additional benefits for Accidental Death and 14 Dismemberment (AD&D). 15 Dkt. No. 67 at ECF 22 (emphasis added). This language indicates that the Kaiser group life 16 insurance coverage was $5,000. The SPD further references $5,000 in benefits for AD&D 17 insurance, which “provides additional income protection for you in case of injury or death 18 resulting from an accident.” Id. at ECF 23. There is no indication in the record that AD&D 19 coverage or benefits have any relevance to the present action. Nor is there any indication that the 20 Kaiser group plan provided for a yearly sum of $10,000 multiplied by Ms. Arnold’s years of 21 employment, as Ms. Arnold contends. 22 There is also no apparent basis for Ms. Arnold’s claim that the Kaiser group policy entitled 23 her to a Total and Permanent Disability (“T&PD”) coverage or payout for every year she worked 24 at Kaiser. In order to qualify for T&PD, the SPD provides that a claimant must: 25 • “Be covered by employer-paid life insurance at the time of your disability.” 26 • “Be totally and permanently disabled, as determined by MetLife, based on the terms of 27 the plan. Total and Permanent Disability means that because of a sickness or injury 1 you are fit by your education, your training, or your experience; and you cannot ever 2 again be expected to do any work at all for wage or profit.” 3 • Submit a claim form no sooner than six months and no later than 12 months after the 4 start of your disability. 5 Dkt. No. 67 at ECF 27. To the extent Ms. Arnold’s pleadings suggest that she was entitled to 6 TP&D benefits due to a mental disability, Brighthouse correctly notes that Ms. Arnold’s prior 7 pleadings in the present action suggest that her alleged mental disability began around 2006. Dkt. 8 No. 1 at ECF 4; Dkt. No. 19 at ECF 2. There is no indication that she timely submitted a claim for 9 TP&D benefits, if at all. Moreover, the SPD states that for claimants who qualify, “the amount of 10 [their] monthly T&PD benefit will be $18.00 per $1,000 of life insurance coverage. The 11 maximum benefit is $19,000.” Dkt. No. 67 at ECF 23. The SPD further provides: “If you are 12 under age 61 when you become eligible for T&PD benefits, your benefit will be paid out in 13 monthly installments for up to 60 months.” Id. 14 In sum, the SPD documents appended to the SAC and upon which Ms. Arnold bases her 15 allegations, do not support a plausible claim that she was entitled to convert at least $120,000 of 16 Kaiser group coverage to an individual plan or to receive a T&PD payout. As such, there is no 17 plausible basis for her claim that Mr. Lonergan negligently failed to disclose the “true face 18 amount” of her insurance or that Ms. Arnold suffered any resulting injury. 19 2. The negligence claim is untimely and no tolling applies. 20 Even if the SAC stated a plausible claim for negligence, any such claim would be 21 untimely, and Ms. Arnold has not alleged sufficient facts to justify tolling of the applicable statute 22 of limitations. In California, a claim for negligence, including for professional negligence, has a 23 two-year statute of limitations. Cal. C.C.P. § 339; Fanucci v. Allstate Ins. Co., 638 F. Supp. 2d 24 1125, 1133 n.5 (N.D. Cal. 2009); Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Assocs., 25 Inc., 115 Cal. App. 4th 1145, 1154 (2004). According to the SAC, Mr. Longergan procured Ms. 26 Arnold’s individual policy with an alleged incorrect amount of insurance in June 2012. The 27 present lawsuit was filed over seven years later in July 2019. 1 as California Code of Civil Procedure § 352. Additionally, as noted above, the SAC seems to 2 allege that tolling applies because Ms. Arnold claims that information was “fraudulently 3 concealed” from her. 4 a. The discovery rule 5 The “discovery rule” is an exception to the general rule of accrual of a claim for relief and 6 “assumes that all conditions of accrual of the action—including harm—exist, but nevertheless 7 postpones commencement of the limitation period until the plaintiff discovers or should have 8 discovered all facts essential to his cause of action.” Camsi IV v. Hunter Tech. Corp., 230 9 Cal.App.3d 1525, 1536 (1991) (quotations and citations omitted). That is, the applicable 10 limitations period does not begin to run until “plaintiff either (1) actually discovered [her] injury 11 and its negligent cause or (2) could have discovered injury and cause through the exercise of 12 reasonable diligence.” Id. “The rule is based on the notion that statutes of limitations are intended 13 to run against those who fail to exercise reasonable care in the protection and enforcement of their 14 rights.” Id. (quotations and citations omitted). “[T]herefore, those statutes should not be 15 interpreted so as to bar a victim of wrongful conduct from asserting a cause of action before [s]he 16 could reasonably be expected to discover its existence.” Id. To invoke the discovery rule, a 17 plaintiff must establish facts showing (1) the time and manner of discovery and (2) the inability to 18 have made earlier discovery despite reasonable diligence. Id. 19 Ms. Arnold alleges that after finding the SPD documents in her garage, and after 20 “understanding legal rights,” she discovered that she was entitled to “more money” and “offered 21 benefits to life insurance.” Dkt. No. 67 at ECF 5. Even assuming that the SAC states a plausible 22 claim for relief (it does not), Ms. Arnold fails to allege facts explaining the time and manner of her 23 discovery or why, despite having the SPD documents in her possession since at least 2015, she 24 was unable to make an earlier discovery despite reasonable diligence. While the SAC suggests 25 that Ms. Arnold did not “understand[] [her] legal rights,” ignorance of the law, standing alone, 26 does not justify tolling. See Theodule v. Blue Mercury, No. 17-cv-05581-DMR, 2018 WL 27 4110555, at *5 (N.D. Cal. Aug. 29, 2018) (stating that “ignorance of the law due to [the b. Fraudulent concealment 1 Relatedly, Ms. Arnold suggests that the statute of limitations should be tolled because 2 matters were fraudulently concealed from her. Dkt. No. 67 at ECF 5. “‘The doctrine of fraudulent 3 concealment tolls the statute of limitations where a defendant, through deceptive conduct, has 4 caused a claim to grow stale.’” Yetter v. Ford Motor Co., — F. Supp. 3d —, No. 19-cv-00877- 5 LHK, 2019 WL 7020348, at *7 (N.D. Cal. Dec. 20, 2019) (quoting Aryeh v. Canon Bus. Sols., 6 Inc., 55 Cal. 4th 1185, 1192 (2013)). “In order to establish fraudulent concealment, the complaint 7 must show: (1) when the fraud was discovered; (2) the circumstances under which it was 8 discovered; and (3) that the plaintiff was not at fault for failing to discover it or had no actual or 9 presumptive knowledge of facts sufficient to put him on inquiry.” Baker v. Beech Aircraft Corp., 10 39 Cal. App. 3d 315, 321 (1974). “In urging lack of means of obtaining knowledge, it must be 11 shown that in the exercise of reasonable diligence the facts could not have been discovered at an 12 earlier date.” Id. 13 The SAC fails to plead any facts establishing that Mr. Lonergan engaged in conduct 14 resulting in any injury to Ms. Arnold, much less any acts by him that would have prevented Ms. 15 Arnold from discovering the alleged basis for her claim. In any event, for the reasons discussed 16 above, this order finds that the SAC does not allege sufficient facts concerning the time and 17 manner of Ms. Arnold’s discovery of her claim or her diligent investigation. 18 c. California Code of Civil Procedure § 352 19 Section 352 of the California Code of Civil Procedure provides that if a plaintiff lacks “the 20 legal capacity to make decisions” at the time her claim accrued, the time during which the plaintiff 21 lacks such legal capacity is tolled, and tolling only lasts until the plaintiff regains capacity. Cal. 22 C.C.P. § 352(a). Under section 352, a person suffers from “mental derangement” sufficient to toll 23 the statute of limitations if she is “incapable of caring for [her] property or transacting business or 24 understanding the nature or effects of [her] acts.” Hsu v. Mt. Zion Hospital, 259 Cal. App. 2d 562, 25 571 (1968); accord Alcott Rehab. Hosp. v. Super. Ct., 93 Cal. App. 4th 94, 101 (2001). “Even a 26 person ‘adjudged mentally ill’ for commitment by a court ‘may nevertheless be capable of 27 transacting business and carrying out h[er] affairs.’” Estate of Stern v. Tuscan Retreat, Inc., 725 1 Fed. App’x 581, 522 (9th Cir. 2018) (quoting Hsu, 259 Cal. App. 2d at 573). Ms. Arnold does not 2 allege any facts demonstrating that at the time her claim reportedly accrued, she lacked the legal 3 capacity to make decisions within the meaning of section 352. Although the SAC states that when 4 she obtained her individual insurance policy through Mr. Lonergan, Ms. Arnold “was suffering 5 from chronic illness of mental disorder” and “postpartum,” there are no allegations suggesting that 6 she was incapable of caring for her property or otherwise carrying out her affairs. To the contrary, 7 the SAC indicates that Ms. Arnold was able to communicate with Kaiser’s human resources 8 representatives, make decisions about obtaining an individual insurance policy, meet with Mr. 9 Lonergan and “explain her situation,” and inquire about the amount of coverage under an 10 individual policy. Dkt. No. 67 at ECF 4-5. 11 For these reasons, Brighthouse’s motion to dismiss Ms. Arnold’s negligence claim is 12 granted. 13 B. Negligent Misrepresentation 14 “Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a 15 misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing 16 it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance 17 of the truth and justifiable reliance thereon by the party to whom the misrepresentation was 18 directed, and (5) damages.” Fox v. Pollack, 181 Cal. App. 3d 954, 962 (1986). Brighthouse 19 contends that Ms. Arnold’s claim for negligent misrepresentation is a species of fraud subject to 20 Rule 9(b), such that the SAC “must state with particularity the circumstances constituting fraud or 21 mistake.” Fed. R. Civ. P. 9(b).5 However, “[m]alice, intent, knowledge, and other conditions of a 22 5 A claim for negligent misrepresentation has either a two-year or three-year statute of limitations, 23 depending on whether the essence of the claim is negligence or fraud. Johnston v. Covidien, LP, No. C19-01419 WHA, 2019 WL 2410720, at *3 (N.D. Cal. June 7, 2019) (citing Fanucci, 638 F. 24 Supp. 2d at 1133 n.5). Citing Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1054 (9th Cir. 2008), Brighthouse contends that Ms. Arnold’s claim for negligent misrepresentation is 25 barred by a two-year limitations period. Platt, however, cites to Ventura Cty. Nat’l Bank v. Macker, 49 Cal. App. 4th 1528 (1996), which rejected a three-year limitations period where the 26 essence of the negligent misrepresentation claim was negligence, not fraud. Insofar as Brighthouse maintains that Ms. Arnold’s negligent misrepresentation claim sounds in fraud, it 27 seems that the three-year limitations period applies, and that her claim is not time-barred. Even 1 person’s mind may be alleged generally.” Id. “A pleading is sufficient under [R]ule 9(b) if it 2 identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer 3 from the allegations. While statements of the time, place and nature of the alleged fraudulent 4 activities are sufficient, mere conclusory allegations of fraud are insufficient.” Moore v. Kayport 5 Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). “To comply with Rule 9(b), allegations 6 of fraud must be specific enough to give defendants notice of the particular misconduct which is 7 alleged to constitute the fraud charged so that they can defend against the charge and not just deny 8 that they have done anything wrong.” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 9 2001) (internal quotations and citation omitted). 10 To the extent the SAC indicates that this claim is based on allegations that Mr. Lonergan 11 either intentionally or negligently misrepresented or concealed facts in the procurement of Ms. 12 Arnold’s individual insurance policy, Brighthouse’s motion to dismiss this claim is granted for the 13 same reasons stated above in connection with Ms. Arnold’s negligence claim. 14 As for the allegations concerning alleged misrepresentations by Ms. Dorotayo and Ms. 15 Mason, the SAC alleges that they misled Ms. Arnold during phone calls in March and April 2017 16 when they reportedly told her that her individual policy could not be reinstated, and denied her 17 request to file a claim, withdraw the cash value of her policy, or take a loan against her policy. 18 Dkt. No. 67 at ECF 11. Although correspondence submitted by Ms. Arnold indicates that various 19 entities have communicated with her about her policy, she insists that she has sued the correct 20 MetLife entities in the present action. Even assuming that is true, however, there is nothing in the 21 SAC that indicates that Ms. Dorotayo or Ms. Mason made any false or misleading statements. 22 Most notably, the March 31, 2017 Brighthouse letter appended to the SAC states that Ms. 23 Arnold’s individual policy “provide[d] for reinstatement within three years of lapse,” and that the 24 policy “lapsed for nonpayment of premiums on June, 2013.” Dkt. No. 67 at ECF 34. There are 25 no allegations in the SAC refuting that Ms. Arnold’s policy lapsed for the reason stated in that 26 letter. Although Ms. Arnold now submits a letter indicating that she inquired about reinstating 27 her policy sometime around August 2014 (Dkt. No. 84 at ECF 14), the SAC does not contain 1 apparently was required for successful reinstatement. See id. 2 Accordingly, the Court concludes that the SAC fails to state a plausible claim for relief 3 based on negligent misrepresentation. Brighthouse’s motion to dismiss this claim is granted. 4 || IV. CONCLUSION 5 Based on the foregoing, defendant Brighthouse’s motion to dismiss the SAC is granted. 6 || Ms. Arnold has had several opportunities to plead her claims for relief and to cure deficiencies by 7 amendments previously allowed. There being no indication that Ms. Arnold possesses any facts 8 || that would permit her to plead a plausible claim for relief in a further amended pleading, the Court 9 finds that further amendment would be futile. The SAC therefore is dismissed without leave to 10 || amend. The Clerk shall enter judgment accordingly and close the file. 11 IT IS SO ORDERED. a 12 Dated: March 5, 2020 a .« □ 4 VIRGINIA K. DEMARCH IS United States Magistrate Judge 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28