FILED

NOT FOR PUBLICATION JUL 30 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

MAJIMAN HAFIZ; ASHARFUN NISHA No. 08-17398

HAFIZ,

D.C. No. 3:07-cv-02114-PJH Plaintiffs - Appellants,

v. MEMORANDUM *

METROPOLITAN LIFE INSURANCE

COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted June 16, 2010 San Francisco, California

Before: RYMER and FISHER and RIPPLE, Circuit Judges.**

Plaintiffs Majiman Hafiz and Asharfun Nisha Hafiz appeal the district

court's summary judgment in favor of defendant Metropolitan Life Insurance

Company (MetLife). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation. Under California law, 'a material misrepresentation or concealment in an

insurance application, whether intentional or unintentional, entitles the insurer to

rescind the insurance policy ab initio.' West Coast Life Ins. Co. v. Ward, 33 Cal.

Rptr. 3d 319, 323 (Ct. App. 2005); see also Cal. Ins. Code y 331. Here, plaintiffs

have failed to create a triable issue as to whether the insured, Ramdulari Sewaµ,

misrepresented her property ownership, as reflected in her listed net worth and the

stated purpose for the life insurance policies. They have provided no authority that

misunderstandings based on cultural differences should negate those

misrepresentations, nor have they shown that MetLife waived its right to the

correct information. See Cal. Ins. Code y 336 ('The right to information of

material facts may be waived, either (a) by the terms of insurance or (b) by neglect

to maµe inquiries as to such facts, where they are distinctly implied in other facts

of which information is communicated.').

Plaintiffs have also failed to create a triable issue as to whether Sewaµ's

misrepresentations were material. The declaration of MetLife's underwriter was

uncontradicted, see Wilson v. W. Nat'l Life Ins. Co., 235 Cal. App. 3d 981, 995-96

(Ct. App. 1991), and plaintiffs do not challenge materiality on appeal. In any

event, although the insurance application did not require applicants to list the

relevant properties and mortgage amounts, it did request information about net

2 worth and income. Thus, Sewaµ's misstated net worth was material as a matter of

law. See Thompson v. Occidental Life Ins. Co. of Cal., 9 Cal. 3d 904, 916 (1973)

('The fact that the insurer has demanded answers to specific questions in an

application for insurance is in itself usually sufficient to establish materiality as a

matter of law.').

AFFIRMED.

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FILED

Hafiz v. Metropolitan Life Insurance Company JUL 30 2010 No. 08-17398 MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

FISHER, Circuit Judge, concurring:

Metropolitan Life Insurance Company (MetLife) has not persuasively shown

that the insurance agreements at issue were for mortgage protection rather than

standard life insurance policies. The only indication that they were of the former

type is a handwritten statement by the sales agent in the application's Additional

Information section, explaining that the purpose of the insurance was to pay off

outstanding mortgage balances on unidentified properties currently owned by the

insured and to be inherited by the beneficiaries of the policies. Notably, the

benefits to be paid upon the death of the insured are not actually linµed to

outstanding mortgage balances, so it is unclear why the beneficiaries' intentions

for the funds mattered from the insurer's point of view. Although MetLife now

says that it would not have issued the policies if not for Sewaµ's

misrepresentations of her property ownership and outstanding mortgage balances,

it did not actually request any of that information in the application itself. The

information came in only indirectly (and incompletely) through the agent's

handwritten statements and the questions regarding the applicant's income and net

worth.

Given my uncertainty about the true nature of the policies, I am sµeptical that MetLife's decision to insure actually depended on this financial information,

as opposed to the extensive details about Sewaµ's health and other risµ indicators

specifically sought in the application. Nor did the post-hoc rationale by MetLife's

underwriter clarify how the incorrect information affected MetLife's decision. Her

declaration provided only a conclusory assessment, without attempting to

substantiate it by reference to MetLife's general practices with respect to mortgage

protection policies. Under California law, a court may 'inquire into the nature of

the information withheld, and the liµely practice of the insurance company had the

concealed facts been truthfully disclosed.' Old Line Life Ins. Co. v. Superior

Court, 229 Cal. App. 3d 1600, 1604 (Ct. App. 1991). MetLife's failure to provide

evidence explaining - rather than merely asserting - its 'liµely practice' maµes this

a close case.

Ultimately, I concur in the decision to affirm because plaintiffs have failed

to create a triable issue on materiality. Their briefs on appeal do not clearly contest

this issue, and they presented no evidence to the district court to contradict the

MetLife underwriter's conclusions. Thus, despite my sµepticism, I agree with the

majority that summary judgment was proper on this record.

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