Diaz v. First American Home Buyers Protection Corp.

MEMORANDUM

Emily Diaz appeals the final orders of the district court dismissing her state law claims for concealment and unfair competition under Federal Rule of Civil Procedure 12(b)(6), dismissing her fraud, breach of contract and breach of the implied covenant of good faith and fair dealing under Rule 12(b)(1) and denying her motion to correct or modify the record under Federal Rule of Appellate Procedure 10(e). For the reasons stated here, we vacate dismissal of Diaz’s concealment and unfair competition claims and lack jurisdiction to review the order denying Diaz’s motion to correct or modify the record.

1. Diaz has adequately alleged a cause of action for concealment. Although First American relies on United Guaranty Mortgage Indemnity Co. v. Countrywide Financial Corp., 660 F.Supp.2d 1163, 1186-87 (C.D.Cal.2009), to argue that California Insurance Code § 332 does not impose a duty to disclose, California law is to the contrary. See Pastoria v. Nationwide Ins., 112 Cal.App.4th 1490 , 6 Cal.Rptr.3d 148, 150, 152, 155 (2003). California law also recognizes an insurer’s “special relationship” with an insured, under which an insurer has the duty reasonably to inform an insured…