NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENATO OPENIANO, an individual, No. 19-56206

Plaintiff-Appellant, D.C. No. 3:18-cv-00943-AJB-AGS v.

HARTFORD LIFE AND ANNUITY MEMORANDUM*

INSURANCE COMPANY, FKA ITT

Hartford Life and Annuity Insurance Company, a corporation; ITT HARTFORD

LIFE AND ANNUITY INSURANCE

COMPANY, a corporation; DOES, 1-100 inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted November 18, 2020** San Francisco, California

Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges. Partial Concurrence and Partial Dissent by Judge N.R. SMITH

* 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). Renato Openiano challenges the district court’s grant of judgment on the

pleadings in favor of Hartford Life and Annuity Insurance Company. As the facts

are known to the parties, we repeat them only as necessary to explain our decision.

This Court has jurisdiction under 28 U.S.C. § 1291.

I

The district court properly dismissed as time-barred Openiano’s claims

relating to the missing 1998 check because the applicable limitations periods were

all expired by at least 16 years when he filed suit. See City of Vista v. Robert

Thomas Sec., Inc., 101 Cal. Rptr. 2d 237, 241 (2000) (breach of fiduciary duty);

Cal. Civ. Proc. Code § 337(1) (breach of contract); id. § 338(d) (constructive fraud

and fraud); id. § 339(1) (bad faith); Cal. Bus. & Prof. Code §17208 (unfair

competition).

The statutes of limitations were not tolled by California’s “Delayed

Discovery Rule” because Openiano had notice of the facts constituting his claims

when they accrued in 1998. See Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103,

1110 (1988). The district court need not have “accept[ed] as true” his allegation

that he did not “discover” his injury until 2015, because it is a legally “conclusory

statement” (as opposed to a genuinely factual allegation). Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Openiano’s argument for tolling based on his alleged mental

disability is waived because he disclaimed it in the district court. See United States

2 v. Rubalcaba, 811 F.2d 491, 493 (9th Cir. 1987).

II

The district court properly held that Openiano failed to state claims for

fraud, breach of contract, or bad faith in relation to Hartford’s cancellation of the

duplicative loan check it sent in 2015.

Regarding the fraud claim, Openiano’s assignment of error hangs on his

contention that the district court failed to accept as true his allegation that there

was no duplicative check. Such allegation was contradicted, however, by exhibits

attached to Openiano’s own complaint, which contain references to the fact that the

non-cancelled duplicative check “is check number 910358.” It is well-settled that

when ruling on Rule 12(b)(6) and 12(c) motions, courts may consider materials

attached as exhibits to the complaint under attack. E.g., Amfac Mortg. Corp. v.

Ariz. Mall of Tempe, Inc., 583 F.2d 426, 429–30 & n. 2 (9th Cir. 1978). And where

attached exhibits “contradict” allegations in the complaint, the court need not

accept such allegations as true. Sprewell v. Golden State Warriors, 266 F.3d 979,

988, 989, amended on other grounds, 275 F. 3d 1187 (9th Cir. 2001). At bottom,

because we “may affirm” the district court’s holding that Openiano failed to state a

fraud claim “upon any basis fairly supported by the record,” we conclude that the

district court did not err in so holding. Burgert v. Lokelani Bernice Pauahi Bishop

Tr., 200 F.3d 661, 663 (9th Cir. 2000).

3 Nor did the district court err by declining to “accept as true” Openiano’s

“threadbare recitals of the elements” of breach-of-contract and bad-faith. Iqbal,

556 U.S. at 678.

III

The district court properly dismissed Openiano’s claims under California’s

Unfair Claims Settlement Practice Act, and for breach of fiduciary duty, as legally

insufficient. The Unfair Claims Settlement Practice Act creates no private cause of

action. Zephyr Park, Ltd. v. Super. Ct., 263 Cal. Rptr. 106, 109–10 (1989).

California recognizes no fiduciary duty between an insurer and an insured. Love v.

Fire Ins. Exch., 271 Cal. Rptr. 246, 252–54 (1990).

IV

The district court did not abuse its discretion in granting Hartford’s request

for judicial notice. Judicial notice may be taken when ruling on a motion for

judgment on the pleadings, Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971,

981 n. 18 (9th Cir. 1999), and all documents here were properly subject to notice.

Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 999 (9th Cir. 2010); Lee v. City of

Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

V

Last, the district court did not err by deciding Hartford’s motion without oral

argument. Where a district court denies oral argument pursuant to local rule, see

4 S.D. Cal. Civ. R. 7.1(d)(1), it neither violates due process nor abuses its discretion,

Morrow v. Topping, 437 F.2d 1155, 1156–57 (9th Cir. 1971).

AFFIRMED.

5 Openiano v. Hartford Life & Annuity Ins. Co., 19-56206

FILED

NOV 20 2020

N.R. SMITH, Circuit Judge, concurring in part and dissenting in part:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Construing Renato Openiano=s claims in his favor as we must at this stage of

the proceedings, see Kotrous v. Goss-Jowett Co., 523 F.3d 924, 929 (9th Cir.

2008); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (“[A] pro

se complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.”), Openiano has stated a cognizable

claim for fraudulent misrepresentation based on the February 13, 2015

representations of Hartford’s employee, see Doe v. Gangland Prods., Inc., 730

F.3d 946, 960 (9th Cir. 2013) (noting that, under California law, “[t]he elements of

fraud are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4)

justifiable reliance; and (5) resulting damage”). Thus, I would reverse and remand

for further consideration the district court’s ruling on Openiano’s fraudulent

misrepresentation claim.

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