FILED
NOT FOR PUBLICATION
OCT 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE IVAN RAMOS, individual, on No. 14-56500
behalf of themselves and on behalf of all
persons similarly situated; JOSE D.C. No.
HERNANDEZ, individual, on behalf of 2:14-cv-01151-JFW-CW
themselves and on behalf of all persons
similarly situated,
MEMORANDUM*
Plaintiffs-Appellants,
v.
INFINITY INSURANCE COMPANY, an
Indiana Corporation, doing business in
California,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted October 7, 2016**
Pasadena, California
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
*
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).
The sole issue on appeal is whether the district court erred by granting
summary judgment in favor of Infinity Insurance Company (“Infinity”).1 We have
jurisdiction under 28 U.S.C. § 1291, and affirm. We review the district court’s
grant of summary judgment de novo.
Infinity had the right to rescind Jose Hernandez’s insurance policy because
Hernandez concealed a material fact. Cal. Ins. Code § 331. Infinity specifically
asked Hernandez to list “[a]ll persons age 15 or older, LICENSED OR NOT, who
reside with the applicant and any other drivers of the vehicle(s) on this
application.” Hernandez failed to list on the application the name of his son Jose
Ivan Ramos, who was 19 years old and lived with Hernandez at the time the
application was submitted to Infinity. The failure to list Ramos on the insurance
application was a “material” concealment. See Mitchell v. United Nat’l Ins. Co.,
127 Cal. App. 4th 457, 476 (2005) (holding a concealed fact is “material” if the
non-disclosed information would have an impact on the risk that the insurance
company assumes and the terms under which it would issue an insurance policy).
Moreover, Hernandez and Ramos claim that all of Infinity’s California
automobile insurance policies provide less uninsured motorist (“UM”) coverage
1
Plaintiffs-Appellants do not appeal the district court’s ruling denying
class certification or Defendant-Appellees’s motion for judgment on the pleadings.
2
than is required by California’s uninsured motorist statute. Cal. Ins. Code
§ 11580.2(b). However, even if Infinity’s California automobile insurance policies
could be interpreted as providing less coverage than required by California’s
uninsured motorist statute, then California Insurance Code § 11580.2(b) provides
that the terms of California’s UM statute would be read into all of Infinity’s
California automobile insurance policies as a matter of law. See Mid-Century Ins.
Co. v. Gardner, 9 Cal. App. 4th 1205, 1220 (1992) (“[A] policy which purports to
provide a more restrictive coverage than that set forth in the [UM] statute will not
be given effect.”); see also Hartford Fire Ins. Co. v. Marci, 4 Cal. 4th 318, 324
(1992) (“Indeed, the provisions of the [UM] statute are a part of every policy of
insurance to which it is applicable.”).
Each side to bear its own costs and fees.
AFFIRMED.
3