NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 4 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHERI POE, on behalf of herself and all No. 23-3124 others similarly situated, D.C. No. 8:21-cv-02065-SPG-E Plaintiff - Appellant,

v. MEMORANDUM*

NORTHWESTERN MUTUAL LIFE

INSURANCE COMPANY,

Defendant - Appellee.

CHERI POE, No. 23-3243 Plaintiff - Appellee, D.C. No. 8:21-cv-02065-SPG-E v.

NORTHWESTERN MUTUAL LIFE

INSURANCE COMPANY,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Sherilyn Peace Garnett, District Judge, Presiding

Argued and Submitted February 5, 2025 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: SCHROEDER, MILLER, and DESAI, Circuit Judges.

Plaintiff-Appellant Cheri Poe seeks to represent a class of life insurance

beneficiaries who claim that Defendant Northwestern Mutual Life Insurance

Company breached their insurance policies by declining to pay them benefits.

Northwestern Mutual had terminated the policies for nonpayment of premiums, but

Poe contends these terminations were ineffective because the insurer failed to

comply with California Insurance Code sections 10113.71 and 10113.72 (“the

statutes”). Poe appeals the district court’s denial of class certification, and

Northwestern Mutual cross appeals the district court’s summary judgment in favor

of Poe.

The outcome of this appeal is controlled by our recent decision in Small v.

Allianz Life Insurance Company of North America, 122 F.4th 1182 (9th Cir. 2024).

There, we held that to prevail on breach of contract claim like Poe’s, plaintiffs

must establish the statutory violations caused them harm. Id. at 1193 (“[A]

plaintiff must demonstrate that they did not knowingly or intentionally let the

policy lapse such that the Insurer’s compliance . . . would have caused the plaintiff

to pay their premiums and retain the policy.”). Small requires us to affirm the

denial of class certification and vacate the summary judgment order as well as the

resulting judgment on the merits in favor of Poe. Just as in Small, class

certification was not appropriate here because individualized causation issues

2 23-3124 predominate. See id. at 1199–1200. In granting summary judgment, the district

court did not consider whether Northwestern Mutual’s violations caused Poe harm,

so the case must be remanded for the court to consider causation. See id. at 1193.

Poe attempts to distinguish Small on the basis that the relevant breach in

Small was a violation of the statutes, while the claimed breach here is

Northwestern Mutual’s failure to pay benefits. This is a distinction without a

difference. In both cases, plaintiffs’ theory was that due to the statutory violations,

the policies remained in effect, and the insurer breached the policies by not paying

benefits. See id. at 1192, 1194. This is precisely the theory of recovery Small

rejected. Id. at 1196.

The motions for judicial notice (Docket Entry Nos. 86 and 95) are granted.

The motion to certify to the California Supreme Court (Docket Entry No.

99) is denied.

AFFIRMED in part and VACATED and REMANDED in part.

3 23-3124