FILED
NOT FOR PUBLICATION
DEC 02 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANFORD J. WISHNEV, individually No. 16-16037
and on behalf of all others similarly
situated, D.C. No. 3:15-cv-03797-EMC
Plaintiff-Appellee,
MEMORANDUM*
v.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted October 16, 2017
Submission Withdrawn January 18, 2018
Resubmitted November 27, 2019
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and MOLLOY,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
The Northwestern Mutual Life Insurance Company (Northwestern Mutual)
appeals the district court’s denial of its motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We have
jurisdiction under 28 U.S.C. § 1292(b).
The district court denied Northwestern Mutual’s motion to dismiss based on
its rulings that: (1) Northwestern Mutual was not exempt from the requirement
that “interest shall not be compounded . . . unless an agreement to that effect is
clearly expressed in writing and signed by the party to be charged therewith,” Cal.
Civ. Code § 1916-2 (the disclosure requirement); and (2) Northwestern Mutual
failed to comply with the disclosure requirement. Because California law in this
area was unsettled, we certified two questions respecting these issues to the
California Supreme Court, see Wishnev v. Nw. Mut. Life Ins. Co., 880 F.3d 493,
495 (9th Cir. 2018), which subsequently answered the first of our two questions,
see Wishnev v. Nw. Mut. Life Ins. Co., No. S246541, 2019 WL 5996921 (Cal. Nov.
14, 2019).
Under the California Supreme Court’s ruling, lenders that are exempt from
restrictions on interest rates under Article XV, section 1 of the California
Constitution, see Cal. Const. art XV, § 1, are exempt from the disclosure
requirement in section 1916-2 of the California Civil Code, Wishnev, 2019 WL
2
5996921, at *11. On appeal, the parties assumed that Northwestern Mutual was an
exempt lender under section 1100.1 of the California Insurance Code at the
relevant time. See id. at *5, 11 n.17. Therefore, under the California Supreme
Court’s ruling, and assuming that Northwestern Mutual was an exempt lender at
the relevant time, Northwestern Mutual is exempt from the disclosure requirement
and Wishnev’s First Amended Complaint fails to state a claim. Because the parties
“assumed that Northwestern Mutual was an exempt lender at all relevant times”
and did not address the question “whether a lender’s designation as exempt under
article XV applies retroactively to a loan that may predate the designation,”
Wishnev, 2019 WL 5996921, at *11 n.17, we vacate the district court’s order so
that it may address this issue in the first instance.
VACATED with instructions.1
1
Each party shall bear its own costs.
3