The Lincoln National Life Insurance Company v Pamela McClendon

Filing 55

ORDER re: Plaintiff's Motion for Partial Summary Judgment or in the Alternative Summary Adjudication 36 by Judge Ronald S.W. Lew. The Court GRANTSPlaintiff's Motion for Partial Summary Judgment as to the Money Had and Received claim. SEE ORDER FOR COMPLETE DETAILS. (jre)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, 13 14 Plaintiff, 15 v. 16 17 PAMELA MCCLENDON, 18 Defendant. 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV 15-3771-RSWL-Ex ORDER re: Plaintiff’s Motion for Partial Summary Judgment or in the Alternative Summary Adjudication [36] Currently before the Court is Plaintiff The Lincoln 22 National Life Insurance Company’s (“Plaintiff”) Motion 23 for Partial Summary Judgment, or in the Alternative, 24 Summary Adjudication (“Motion”) as to its claim for 25 Money Had and Received against Defendant Pamela 26 McClendon (“Defendant”) [36]. Having reviewed all 27 papers submitted pertaining to this Motion, the Court 28 NOW FINDS AND RULES AS FOLLOWS: The Court GRANTS 1 1 Plaintiff’s Motion [36]. 2 I. BACKGROUND 3 A. Factual Background 4 Plaintiff is an Indiana corporation authorized to 5 do business in California. Compl. ¶ 1, ECF No. 1. 6 Defendant is the daughter of Netha McClendon, the 7 recipient of an annuity (“the Annuitant”). 8 Id. at ¶ 5. On August 13, 1992, Alexander Hamilton Life 9 Insurance Company of America issued a Single Life 10 Immediate Annuity, No. 4000073334 (“the Annuity”) to 11 the Annuitant. Id.; Compl. Ex. 1, ECF No. 1-1. In 12 October 1995, Jefferson Pilot Life Insurance Company 13 (“Jefferson”) acquired the Annuity. Id. at ¶ 6. In 14 April 2007, after merging with Jefferson, Plaintiff 15 acquired ownership of the Annuity and its 16 rights/obligations. Id. Starting September 20, 1992, 17 the Annuitant would receive $3,000.00 monthly under the 18 “Single Life Immediate Annuity - Life Only” option. 19 Id. at ¶ 7; Compl. Ex. 1. Pursuant to the Annuity, 20 Plaintiff would make payments “as long as the Measuring 21 Life [the Annuitant] is living.” 22 Ex. 1 at 8. See Compl. ¶¶ 8, 9, If the Annuitant died before all payments 23 were made, “the remaining guaranteed payments will be 24 paid, when due, to the Designated Beneficiary.” Id. 25 The “Beneficiary” box on the Annuitant’s contract 26 states: “Not Applicable.” 27 Compl. Ex. 1. The Annuitant died on January 6, 1998. 28 9, 10. Compl. ¶¶ Defendant did not inform Plaintiff of the 2 1 Annuitant’s death. Id. at ¶ 13. As a result, 2 Plaintiff made 190 monthly payments to Annuitant—who it 3 thought was still alive—from January 1998 to October 4 2013, totaling $570,000. Id. at ¶¶ 10, 16. The checks 5 were sent to the Annuitant’s last-known address, where 6 Plaintiff alleges Defendant was living. Id. at ¶ 11. 7 Plaintiff alleges that Defendant deposited the mistaken 8 overpayments into her bank account. Id. Sometime in 9 2006, the Annuitant purportedly signed a Deed of Trust 10 transferring her property to Defendant, even though the 11 Annuitant had been dead for eight years. Decl. of 12 Douglas Burdick (“Burdick Decl.”) ¶ 4, Ex. 2, ECF No. 13 36-2. On March 6, 2009, a caller identifying herself 14 as the Annuitant allegedly called Plaintiff, provided a 15 birth date and social security number, and requested 16 reinstatement of payments. Id. at ¶ 7, Ex. 5, ECF No. 17 36-2. 18 Plaintiff alleges that it was unaware of the 19 overpayments until October 2013. Compl. ¶ 16. On 20 December 18, 2013, Plaintiff sent letters to the 21 Annuitant’s family, informing them of the overpayments 22 and requesting reimbursement. Id. at ¶ 17. On May 19, 23 2014, Defendant allegedly admitted responsibility for 24 the overpayments, but has yet to pay any of them back. 25 Id. at ¶¶ 18-19. 26 B. Procedural Background 27 On May 19, 2015, Plaintiff filed its Complaint, 28 alleging the following claims: (1) Unjust Enrichment; 3 1 (2) Money Had and Received; (3) Money Paid; (4) 2 Conversion; (5) Imposition of a Constructive Trust. 3 Compl. ¶¶ 21-23; 28-29; 35; 40; 45. 4 On December 21, 2016, the final day of its motion 5 filing cut-off date, Plaintiff filed the instant Motion 6 as to the Claim for Money Had and Received and its 7 Separate Statement of Uncontroverted Facts and 8 Conclusions of Law (“SUF”) [36-1]. Defendant’s 9 Opposition was due on January 3, 2017. Defendant 10 missed this deadline and filed an ex parte application 11 requesting an extension of time to file the Opposition 12 [40]. The Court granted the ex parte application, 13 allowing Defendant until 5 P.M. on January 6, 2017 to 14 file its Opposition [42]. On January 6, Defendant 15 filed its Opposition, Statement of Genuine Issues of 16 Material Fact, Objections to Plaintiff’s Motion, and 17 Declarations [46, 47, 49]. Plaintiff’s Reply was 18 timely filed on January 10, 2017 [51]. 19 II. FINDINGS OF FACT 20 1. The Annuitant died on January 6, 1998. 21 ¶ 5; see Decl. of Daniel S. Imber (“Imber Decl.”), 22 Ex. 7 at 10:4-5, ECF No. 36-3. 23 2. The Annuity Contract provided for a monthly benefit 24 payment of $3,000 under the Life Only option. 25 Pl.’s Stmt. of Uncontroverted Facts (“Pl.’s Facts”) 26 ¶ 2, ECF No. 36-1; see Decl. of Douglas Burdick 27 (“Burdick Decl.”) ¶ 3, Ex. 1, ECF No. 36-2 28 (undisputed). 4 Pl’s Facts 1 3. Between January 12, 2007 and October 14, 2013, 2 Plaintiff issued 80 checks, $3,000 each, payable 3 and addressed to the Annuitant, Netha McClendon. 4 Pl.’s Facts ¶ 4; see Burdick Decl. ¶ 8, Ex. 6 5 (undisputed). 6 II. DISCUSSION 7 A. Legal Standard 8 1. 9 Federal Rule of Civil Procedure 56 states that a Motion for Summary Judgment 10 “court shall grant summary judgment” when the movant 11 “shows that there is no genuine dispute as to any 12 material fact and the movant is entitled to judgment as 13 a matter of law.” Fed. R. Civ. P. 56(a). “The party 14 moving for summary judgment has the initial burden of 15 proof to show “no genuine dispute as to any material 16 fact.” Fed. R. Civ. P. 56(a); In re Oracle Corp. 17 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 18 2010). “A party asserting that a fact cannot be . . . 19 genuinely disputed must support the assertion by: 20 citing to particular materials in the record, including 21 . . . stipulations.” Fed. R. Civ. P. 56(c)(1)(A). “In 22 determining any motion for summary judgment . . ., the 23 Court may assume that the material facts as claimed and 24 adequately supported by the moving party are admitted 25 to exist without controversy except to the extent that 26 such material facts are (a) included in the ‘Statement 27 of Genuine Disputes’ and (b) controverted by 28 declaration or other written evidence filed in 5 1 opposition to the motion.” 2 Local Rule 56-3. Where the non-moving party bears the burden of 3 proof at trial, the moving party need only prove that 4 there is an absence of evidence to support the non5 moving party’s case. 6 387. In re Oracle Corp., 627 F.3d at If the moving party meets this burden, the burden 7 then shifts to the non-moving party to produce 8 admissible evidence showing a triable issue of fact. 9 Id.; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 10 F.3d 1099, 1102-03 (9th Cir. 2000); see Fed. R. Civ. P. 11 56(a). 12 2. 13 Federal Rule of Civil Procedure 56(g) authorizes Partial Summary Judgment 14 courts to grant partial summary judgment in order to 15 limit the issues to be tried in a case. State Farm 16 Fire & Cas. Co. v. Geary, 699 F. Supp. 756, 759 (N.D. 17 Cal. 1987) (citing Lies v. Farrell Lines, Inc., 641 18 F.2d 765, 769 n.3 (9th Cir. 1981)). Absent a specific 19 statute authorizing otherwise, a partial summary 20 judgment under Rule 56(g) is not a final judgment but 21 rather an interlocutory summary adjudication or a 22 pre-trial order, neither of which is appealable prior 23 to the entry of a final judgment in the case. Wynn v. 24 Reconstruction Fin. Corp., 212 F.2d 953, 956 (9th Cir. 25 1954). 26 /// 27 /// 28 /// 6 1 B. Analysis 2 1. 3 4 Defendant’s Evidentiary Objections a. Objections to Plaintiff’s Exhibits Defendant objects to the copy of the Annuity 5 contract and Call Log Transcript and Log 6 Notes—reflecting the March 2009 and May 2014 phone 7 conversations—on the grounds of improper 8 authentication, hearsay, and lack of foundation. 9 Def.’s Objs. To Decl. & Exs. (“Def.’s Objs.”) 2:8-13, 10 ECF No. 49; Burdick Decl. Exs. 1-2; 4-5. 11 “A document which lacks a proper foundation to 12 authenticate it cannot be used to support a motion for 13 summary judgment.” Hal Roach Studios Inc. v. Richard 14 Feiner & Co., Inc., 896 F.2d 1542, 1551 (9th Cir. 15 1989). As required by Rule 56, documentary materials 16 need authentication through affidavits or declarations 17 from individuals with personal knowledge of the 18 document. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 19 883 (9th Cir. 1982). 20 The aforementioned documentary evidence to which 21 Defendant objects was properly authenticated in the 22 Supplemental Declaration of Douglas Burdick, attached 23 to Plaintiff’s Reply. Mr. Burdick is Plaintiff’s Vice 24 President and custodian of records with personal 25 knowledge of these business records. Supp. Decl. of 26 Douglas F. Burdick (“Supp. Burdick Decl.”) ¶ 1, ECF No. 27 51-1. Mr. Burdick demonstrates personal knowledge of 28 the declaration’s contents as Plaintiff’s Vice 7 1 President who personally reviewed and is “familiar with 2 the files in this Action, the records of Plaintiff as 3 they pertain to this matter, and Plaintiff’s policies.” 4 Id.; Curley v. Wells Fargo & Co., 120 F. Supp. 3d 992, 5 998-99 (N.D. Cal. 2015) (Vice President of Loan 6 Documentation who personally reviewed loan-related 7 records at issue and affirmed that records were made in 8 ordinary course of business established her familiarity 9 with the records). 10 Moreover, although Defendant objects to the 11 documentary evidence as inadmissible hearsay, the 12 evidence fits within the business-records exception.1 13 As set forth in the declaration, the records were made 14 at or near the time of the recorded events and 15 maintained in the ordinary course of Plaintiff’s 16 business by an individual with personal knowledge. 17 Supp. Burdick Decl. ¶ 1. As such, the Court OVERRULES 18 Defendant’s objections on hearsay, lack of foundation, 19 and lack of authentication grounds to the Annuity 20 Contract, Transcript from Call Logs and log notes, and 21 March 6, 2009 copy of the log notes prepared by 22 /// 23 24 25 26 27 28 1 Under this exception, a document is admissible if its proponent shows: (1) that the record was made at or near the time of the event; (2) that the record was made by or from information transmitted by a person with knowledge; (3) that the record was kept in the course of a regularly conducted activity of a business or organization; and (4) that it was a regular practice of that business or organization to make such a record. Fed. R. Evid. 803(6). 8 1 Plaintiff’s customer service representatives [49].2 2 3 b. Objections to Douglas Burdick Declaration Defendant objects to several paragraphs of the 4 Burdick Declaration [36-2]. Defendant objects on 5 largely redundant grounds: lack of personal knowledge, 6 hearsay, relevance, conclusory/lacks foundation. See 7 generally Def.’s Objs.3 8 Because many of Defendant’s objections are 9 boilerplate and “devoid of any specific argument or 10 analysis as to why any particular exhibit or assertion 11 in a declaration should be excluded,” United States v. 12 HVI Cat Canyon, Inc., ---F. Supp. 3d---, 2016 WL 13 7011348, at *5 (C.D. Cal. Sept. 30, 2016), the Court 14 OVERRULES all of Defendant’s objections as to 15 paragraphs 3, 6, 7, and 10 of the Burdick Declaration 16 [49].4 See Amaretto Ranch Breedables v. Ozimals, Inc., 17 18 19 20 21 22 23 24 25 26 27 28 2 Defendant also objects to the Deed of Trust, in which Defendant allegedly forged her mother’s signature to transfer property to herself. Burdick Decl. ¶ 4, Ex. 2. This Deed of Trust allegedly contained the real property address to which Plaintiff mistakenly sent the Annuitant’s overpayments. Mot. 3:23-26. Because the Court does not consider this piece of evidence in reaching its conclusions on this Motion, it SUSTAINS as MOOT this Objection. 3 As to all paragraphs the Court considered in its Motion, Defendant objects on lack of personal knowledge grounds. Fed R. Evid. 602. Defendant objects to all paragraphs, except for paragraph 10, on hearsay grounds and conclusory/lacks foundation. Fed R. Evid. 801, 803. Defendant attacks paragraphs 4, 6, and 7 on lack of authentication grounds. Fed R. Evid. 901. 4 Defendant objects to paragraph 4 of the Declaration where Mr. Burdick states that Plaintiff obtained a Deed of Trust, purportedly signed and notarized after the Annuitant’s death, 9 1 907 F. Supp 2d 1080, 1081 (N.D. Cal. 2012) (summarily 2 overruling boilerplate objections that parties failed 3 to develop); Doe v. Starbucks, Inc., No. SACV 08-0582 4 AG (CWx), 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 5 2009)(“[I]n motions for summary judgment with numerous 6 objections, it is often unnecessary and impractical for 7 a court to methodically scrutinize each objection and 8 give a full analysis of each argument raised.”) 9 Even if the evidentiary objections are pertinent, 10 the Court is not satisfied that it should strike any of 11 the contested paragraphs in the Burdick Declaration. 12 Indeed, many of Defendant’s rote objections can be 13 handled in one fell swoop. Many of the statements Mr. 14 Burdick makes are objected to as lacking personal 15 knowledge and conclusory/lacks foundation. Pursuant to 16 Federal Rule of Evidence 602, “[e]vidence to prove 17 personal knowledge may consist of the witness’s own 18 testimony.” As Plaintiff’s Vice President and 19 custodian of records, Burdick Decl. ¶¶ 1, 2, Mr. 20 Burdick states that he has personal knowledge—and he 21 plausibly does—of Plaintiff’s business records, 22 including the Annuity contract, call logs, call 23 transcripts, and Plaintiff’s general practice of 24 25 26 27 28 transferring property from the Annuitant to Defendant. Defendant objects on grounds of relevance, lack of personal knowledge, lack of authentication, hearsay, and conclusory/lacks foundation. The Court SUSTAINS these objections as MOOT because it does not rely on any of the specific portions of the Burdick Declaration to which Defendant objects. 10 1 learning of an annuitant’s death after checks are 2 returned or family members contact Plaintiff. 3 The hearsay objections can also be disposed of 4 because many of the documents at issue are admissible 5 under the business-records exception, party admissions, 6 or admissions against interest. Supp. Burdick Decl. ¶¶ 7 1, 2 (“[T]he records . . . were made at or about the 8 time of the events recorded, and are maintained in the 9 ordinary course of Lincoln’s business.”) And the 10 relevance objections to paragraphs 6, 7, and 10 are 11 also improper, as the pieces of evidence objected to 12 all have a tendency to prove or disprove material 13 elements of the Money Had and Received claim, including 14 whether Defendant received the money at issue.5 15 2. 16 17 Plaintiff’s Evidentiary Objections a. Objections to Pamela McClendon Declaration Plaintiff objects to the Declaration and 18 Supplemental Declaration of Pamela McClendon [46-1, 50] 19 20 21 22 23 24 25 26 27 28 5 The Court also OVERRULES Defendant’s blanket objections to paragraphs 6 and 7 on lack-of-authentication grounds. The Court already concluded in supra Part II.B.1.a. that the same exhibits in the Burdick Declaration were properly authenticated by the attached declaration from an individual with personal knowledge of their contents. And if Defendant claims lack of authentication as to some other part of the paragraph, she fails to develop the objection in that respect. Defendant also does not provide a thorough analysis for some of her other objections or explain their relevance to the Court’s determination, including “speculative as to the intention of the caller” for the phone conversation transcripts and logs. She also fails to explain how the phone conversations between Defendant and Plaintiff’s customer service representatives were “inadmissible settlement negotiations.” Def.’s Objs. 3:12-14, 3:20-21. The Court finds no reason to sustain those objections as well. 11 1 as they are unsigned and impermissibly contain her “e2 signature,”6 and lack credibility. Plaintiff also 3 generally objects to statements in the Declaration that 4 Defendant’s sister and mother communicated to her as 5 inadmissible hearsay. The Court OVERRULES each of 6 these objections. 7 Plaintiff objects to the McClendon Declaration as 8 lacking credibility and self-serving because it 9 contradicts statements made during Defendant’s 10 deposition. The sham affidavit rule prevents a party 11 from “creat[ing] an issue of fact by an affidavit 12 contradicting his prior deposition testimony.” Van 13 Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 14 2009). The Court must make a factual finding that (1) 15 the contradiction is a “sham;” and the (2) 16 “inconsistency between a party’s deposition testimony 17 and subsequent [declaration] . . . is clear and 18 unambiguous.” Id. Plaintiff highlights inconsistences 19 between the declaration and Defendant’s deposition 20 testimony. For example, she states that she only 21 started depositing the Annuitant’s checks in April 2012 22 after her sister died. McClendon Decl. ¶ 7. But in 23 her deposition, she testified that she deposited checks 24 25 26 27 28 6 For declarations signed by individuals other than CM/ECF Filers, Local Rule 5-4.3.4 requires a hand-signed signature. It appears that Defendant is not a registered CM/ECF filer. Plaintiff asks the Court to strike the declaration because Defendant has failed to properly sign it, but does not sufficiently develop this objection to compel the Court to strike the declaration in its entirety. 12 1 long before her sister’s death. McClendon Dep. 40:19- 2 41:14, Dec. 6, 2016, ECF No. 36-3. Plaintiff also 3 contrasts Defendant’s statement that she relied on what 4 her mother and sister told her (rather than the Annuity 5 contract) with her deposition testimony that she never 6 spoke to her mother about the Annuity. Compare 7 McClendon Decl. ¶ 9, with McClendon Dep. 40:19-41:14. 8 These alleged inconsistencies are insufficient to 9 render the declaration a sham. The aforementioned 10 contradictions are not necessarily a “sham” but may be 11 more so a symptom of Defendant’s own confusion as to 12 the precise timeline of events or her attempt to 13 clarify her prior testimony. Messick v. Horizon 14 Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995) 15 (“[M]inor inconsistencies that result from an honest 16 discrepancy, a mistake, or newly discovered evidence 17 afford no basis for excluding an opposition 18 affidavit.”) Similarly, the Court cannot say with 19 certainty that the inconsistencies are clear and 20 unambiguous. In her declaration, Defendant states that 21 she “relied upon what my mother and sister told me,” 22 but it is unclear whether this refers to conversations 23 about the Annuity or other matters. The Court cannot 24 confidently say that this is clearly inconsistent with 25 her deposition testimony that she never spoke to her 26 mother regarding the Annuity. And the deposition 27 testimony makes no palpable contradiction as to 28 conversations had with her sister. 13 Because the Court 1 should not make definitive credibility determinations 2 on a Motion for Summary Judgment, and the sham 3 affidavit rule is typically cautiously applied, the 4 Court OVERRULES Plaintiff’s objections to the McClendon 5 Declaration. 6 7 b. Van Asdale, 577 F.3d at 998.7 Objections to Chandler Parker Declaration Plaintiff objects to the Declaration of Chandler 8 Parker [48] because the declarant “did not attach 9 identifying information for the discovery responses and 10 misstates the evidence.” Reply 7:22-24. Discovery 11 documents produced during a Motion for Summary Judgment 12 require proper authentication through a declaration. 13 The Court OVERRULES this objection, as it sees no issue 14 with the copy of Plaintiff’s internal policy and AWD 15 History Report, as they were produced during discovery 16 and Plaintiff apparently does not contest their 17 authenticity but instead vaguely complains that they 18 lack “identifying information.” Maljack Prods., Inc. 19 v. GoodTimes Home Video Corp., 81 F.3d 881, n.12 (9th 20 Cir. 1996) (documents on party’s letterhead and 21 produced during discovery, attached to a declaration 22 7 The Court 23 any statements inalso OVERRULES Plaintiff’s hearsay objection to the McClendon Declaration made by the Annuitant or Delores McClendon. Reply 7:19-21. Problematically, Plaintiff 24 25 26 27 28 does not point out specific statements it claims is hearsay. The Court can only find that Defendant mentions she deposited Plaintiff’s checks “[p]ursuant to the directions of Delores,” McClendon Decl. ¶ 7, and “relied upon what my mother and sister told me.” Supp. McClendon Decl. ¶ 9. These are not oral or written assertions constituting a “statement” under the hearsay definition, nor does Plaintiff show how they are “nonverbal conduct . . . intended as an assertion.” Fed R. Evid. 801(a). 14 1 were properly admitted.)8 2 3. 3 4 Whether the Claim is Barred by the Statute of Limitations Before deciding whether there is a genuine dispute 5 of material fact for the Money Had and Received claim, 6 the Court must contend with whether its applicable 7 statute of limitations has lapsed. 8 A claim for Money Had and Received is essentially 9 an action on an implied contract and thus is subject to 10 a two-year statute of limitations. See Murphy v. Am. 11 Gen. Life Ins. Co., 74 F. Supp. 3d 1267, 1280 (C.D. 12 Cal. 2015); Cal. Code Civ. Proc. § 339(1) (two-year 13 limitations period applies to actions for contracts 14 “not founded upon an instrument of writing.”) The 15 statute of limitations accrues upon plaintiff’s 16 “discovery of the loss or damage.” Code Civ. Proc. § 17 339(1). 18 19 8 The Court also OVERRULES the objection that the Parker Exhibit B contains Plaintiff’s response as to when it received notice of Annuitant’s death. Parker Decl. ¶ 3. The interrogatory correspondingly states that Plaintiff received a report of the Annuitant’s death in January 2009. Parker Decl. Ex. B at 2:19-20. 20 Declaration misstates the evidence. 21 22 23 24 25 26 27 28 Plaintiff also objects to Defendant’s “late-filed documents” and failure to comply with the Court’s ex parte order extending time for Defendant to file its Opposition until 5 P.M. on January 6, 2017 [42]. Defendant did so, filing its opposition before the deadline. Defendant mostly complied with this Order. The Court declines at this time to split hairs over the belatedness, later on the evening of the 6th, during which Defendant filed various attachments to its Opposition, its Declarations, its Evidentiary Objections, and its Statement of Genuine Disputes of Material Fact. The Court OVERRULES this objection. 15 1 The parties dispute the precise date when the 2 statute of limitations began to run.9 3 filed on May 19, 2015 [1]. The Complaint was Defendant argues that the 4 Action accrued in January 2009, when Plaintiff 5 discovered the Annuitant’s death by using its 6 Repetitive Payment System Pension Benefit Inquiry 7 (“RPSPBI”) system to cross-check her against the Social 8 Security Index. 9 No. 48-2. Opp’n 6:21-23; Parker Decl. Ex. A, ECF At the very least, Defendant argues, whether 10 Plaintiff had inquiry notice at this time is a question 11 of fact for the jury. Id. at 7:1-2. Plaintiff 12 counters that in March 2009, an individual—at the time, 13 Plaintiff assumed the Annuitant—called Plaintiff, 14 furnished the Annuitant’s birth date and social 15 security number to indicate she was still alive, and 16 continued to endorse and deposit the reinstated Annuity 17 payments. Reply 3:19-26; Burdick Decl. ¶ 7, Ex. 5. 18 These fraudulent activities tolled the statute of 19 limitations until at least October 2013, when Plaintiff 20 learned of the Annuitant’s death. 21 Id. at 3:26-4:1. Defendant offers evidence, in the form of 22 Plaintiff’s interrogatory responses, that Plaintiff 23 24 25 26 27 28 9 Both parties rely on the three-year statute of limitations in California Code of Civil Procedure § 338, reserved for actions based on “fraud or mistake,” including unjust enrichment and conversion. The parties use this statute of limitations because Defendant allegedly fraudulently endorsed checks on the Annuitant’s behalf, inducing Plaintiff to mistakenly make payments. The appropriate statute of limitations for a Money Had & Received claim is two years, and the Court’s analysis thus flows from the section 339(1) statute of limitations. 16 1 typically runs RPSPBI reports to determine if an 2 annuitant has died and its admission that it received a 3 report in January 2009 indicating that Annuitant may 4 have died. Parker Decl. Ex. B, ECF No. 48-2. 5 Defendant also proffers an AWD History report showing 6 Plaintiff’s access to the Social Security Index that 7 would tell it that Annuitant had died. Defendant uses 8 this evidence to make much of Plaintiff’s January 2009 9 discovery of the Annuitant’s death. But Plaintiff 10 never disputes that it received a report in January 11 2009 of the Annuitant’s death and properly ceased 12 Annuity payments. Mot. 3:21. The precise issue, 13 rather, is whether the statute of limitations was 14 tolled beginning in March 2009 when Defendant 15 purportedly called Plaintiff, pretending to be the 16 Annuitant. 17 The statute of limitations may be tolled under the 18 doctrine of fraudulent concealment. “[W]hen the 19 defendant is guilty of fraudulent concealment of the 20 cause of action the statute [of limitations] is deemed 21 not to become operative until the aggrieved party 22 discovers the existence of the cause of action.” Yumul 23 v. Smart Balance, Inc., 733 F. Supp. 2d 1117, 1130 24 (C.D. Cal. 2010) (internal quotation marks omitted) 25 (quoting Unruh-Haxton v. Regents of Univ. Of Cal., 162 26 Cal. App. 4th 343, 367 (Ct. App. 2008)). 27 Even if January 2009 is the logical starting point 28 and assuming that the Action was feasibly barred by the 17 1 two-year statute of limitations, Plaintiff has set 2 forth sufficient evidence that the statute of 3 limitations is tolled by the fraudulent concealment 4 doctrine. Although the RPSPBI indicated Annuitant’s 5 death, a call log from March 6, 2009 states that the 6 “Annuitant” called, “inquiring as to where her 2-20-09 7 check is.” Burdick Decl. Ex. 5 at 1. Plaintiff’s 8 representative verified the alleged Annuitant’s social 9 security number and birth date, “believ[ing] it was 10 her.” Id. A same-day call with a different 11 representative states that the Annuitant “is obviously 12 not deceased.” Id. at 2. Again, the “Annuitant” 13 verified her social security number and date of birth. 14 Id. 15 There is no genuine dispute of material fact as to 16 whether the statute of limitations is tolled by 17 Defendant’s fraudulent concealment of the fact that she 18 wrongfully retained Annuity payments owed to her 19 deceased mother. For fraudulent concealment to toll 20 the statute of limitations, something more than 21 nondisclosure is required. 22 conduct will suffice. Affirmatively deceptive Yumul, 733 F. Supp. 2d at 1131. 23 Defendant affirmatively misrepresented to Plaintiff 24 that the Annuitant was alive—even though she had been 25 deceased for eleven years—by requesting continued 26 Annuity payments and furnishing the Annuitant’s 27 identifying information to continue said benefits. 28 affirmatively deceptive conduct continued in earnest 18 The 1 from 2009 to 2013. Plaintiff believed the Annuitant 2 was still alive and continued to believe so, as 3 Defendant endorsed checks on behalf of her mother, the 4 intended Annuitant, by signing them “Netha McClendon,” 5 from April 12, 2009 to October 14, 2013. Burdick Decl. 6 Ex. 6 at 26-80; Acme Paper Co. v. Goffstein, 125 Cal. 7 App. 2d 175, 180 (Ct. App. 1954) (fraudulent 8 concealment tolled statute of limitations in money had 9 and received claim where employee falsely represented 10 his role and fraudulently endorsed thirty-four 11 different checks). 12 Fraudulent concealment tolls the statute of 13 limitations “until plaintiff discovers, or in the 14 exercise of reasonable diligence should have 15 discovered, the facts on which its cause of action is 16 based.” Sears, Roebuck & Co. v. Blade, 139 Cal. App. 17 2d 580, 587 (Ct. App. 1956). Only by May 29, 2014 did 18 Plaintiff actually discover that Defendant had been 19 depositing the mistaken payments, when she admitted to 20 Plaintiff’s representative that she had received the 21 payments after her sister died, that they “went in 22 [Defendant’s] account,” and that she would need to pay 23 Plaintiff back. Burdick Decl. Ex. 4 at 7. And even 24 through reasonable diligence, it is unlikely that 25 following up with the Annuitant would have unveiled 26 Defendant’s scheme, as she was allegedly convinced that 27 she was owed the Annuity payments and steadfastly 28 committed to providing the Annuitant’s personal 19 1 information to receive more checks. Moreover, 2 Plaintiff’s policy in 2009, of accepting telephonic 3 verification of a birth date and social security number 4 as confirmation of an annuitant’s identity—coupled with 5 Plaintiff’s lack of a mechanism to investigate wrongful 6 receipt of annuity payments—suggests that it was 7 reasonable of Plaintiff not to automatically assume 8 that any caller verifying an annuitant’s information 9 was a family member or shadowy figure wrongfully 10 receiving annuity payments.10 Indeed, the egregiousness 11 and outlandishness of Defendant’s actions—regardless of 12 her claimed mistake of fact—underscores that Plaintiff 13 acted with reasonable diligence. Sears, 139 Cal. App. 14 2d at 591 (“[W]hether [Plaintiff] acted as a reasonably 15 prudent [person] in not investigating [Defendant] must 16 be viewed in the factual setting in which it was 17 made.”) 18 In sum, Defendant does not counter Plaintiff’s 19 adequate evidence that supports tolling the statute of 20 21 22 23 24 25 26 27 28 10 Defendant argues that Plaintiff’s internal policies dictate that it receive a written guarantee of the Annuitant’s death. Defendant proffers an internal policy, which states that “[i]f the [RPSPBI] report shows a client is deceased but in fact they are alive, we require a letter of instruction with signature guarantee stating that they are alive.” Parker Decl. Ex. 3 at 2, ECF No. 48-3. This argument is misplaced, and does not disturb the conclusion that summary judgment is appropriate as to the statute of limitations issue. The policy Defendant presents was effective on August 24, 2011, well after Plaintiff accepted Annuitant’s birth date and social security information during the March 2009 phone call. This anachronistic piece of evidence does little to undermine Defendant’s scheme of fraudulent concealment that tolls the Money Had and Received claim. 20 1 limitations until at least October 2013. The only 2 scintilla of evidence that Defendant offers otherwise 3 is that Plaintiff knew of the Annuitant’s death as 4 early as January 2009. Once again, Plaintiff does not 5 contest this and it would have permanently ceased 6 payments but for Defendant’s fraudulent concealment. 7 Thus, there is no genuine dispute as to whether the 8 statute of limitations merited tolling until October 9 2013. The Complaint was appropriately filed in May 10 2015. 11 4. Money Had and Received 12 The Court now turns to whether there is a genuine 13 dispute of material fact as to whether Plaintiff has 14 proven its Money Had and Received Claim. 15 A claim for Money Had and Received makes a 16 defendant indebted to a plaintiff “for money had and 17 received by the defendant for the use of the 18 plaintiff.” Kandel v. Brother Int’l Corp., No. CV 19 08–1040 DSF (RCx), 2009 WL 9100406, at *1 (C.D. Cal. 20 Feb. 13, 2009) (citation omitted). Although the claim 21 is one at law, it arises in equity when “one person has 22 received money which belongs to another and which in 23 equity and good conscience . . . should be returned.” 24 Hendrickson v. Octagon, Inc., Nos. 14-cv-01416 CRB, 25 2016 WL 7033781, at *13 (N.D. Cal. Dec. 2, 2016) 26 (internal quotation marks omitted) (quoting Mains v. 27 City. Title Ins. Co., 34 Cal. 2d 580, 586 (1949)). The 28 elements are as follows: (1) defendant received money; 21 1 (2) the money defendant received was for plaintiff’s 2 use; and (3) defendant is indebted to plaintiff. 3 Fireman’s Fund Ins. Co. v. Commerce & Indus. Co., No. 4 C–98–1060VRW, 2000 WL 1721080, at *8 (N.D. Cal. Nov. 7, 5 2000). 6 7 a. Whether Defendant Received Money The Court gleans no genuine issue of material fact 8 as to the evidence regarding this element. Plaintiff 9 presents 80 checks, totaling $240,000, endorsed by 10 “Netha McClendon,” the Annuitant, from January 2007 to 11 October 2013, long after her death in January 1998. 12 Burdick Decl. Ex. 6. Defendant herself admits that she 13 deposited checks from Plaintiff into the joint bank 14 account she had with her deceased mother, McClendon 15 Decl. ¶ 7, and endorsed each check in her mother’s (the 16 Annuitant) name. Id. Defendant’s December 2016 17 deposition also leaves little doubt that she received 18 and endorsed at least 80 checks from January 2007 to 19 October 2013. 20 21 22 b. McClendon Dep. 82:15-24, 83:24-84:2. Whether the Money Received was for Plaintiff’s Use Defendant argues that because Plaintiff intended to 23 pay the Annuitant, Netha McClendon, Plaintiff cannot be 24 the intended beneficiary. Opp’n 7:11-14. Plaintiff 25 counters that the Annuity payments were made for its 26 own benefit because it was fulfilling its contractual 27 obligations to pay the Annuitant under the contract. 28 Reply 4:15-16. 22 1 In Fireman’s Fund, the insurer defendant received 2 $27,264,500 in a subrogation claim against a third3 party insurer. 2000 WL 1721080, at *1. Plaintiffs 4 raised a claim for Money Had and Received, claiming 5 entitlement to this amount because they paid $5 million 6 to the insured and thus gained an assignment of the 7 insured’s rights. Id. at *7. Plaintiffs could not, 8 however, show that any of the amount defendant received 9 from a third-party insurer was for plaintiffs’ use. 10 The court stated: “defendant pursued subrogation 11 against [the third-party insurers] by itself; 12 plaintiffs elected not to join in the action . . . 13 [p]laintiffs may have had a separate subrogation claim 14 against those third-party insurers based on its $5 15 million payment to the insured. But plaintiffs cannot 16 establish that any portion of the money received by 17 defendant was for plaintiffs’ use.” Id. at *8. 18 Nevertheless, the court noted circumstances under which 19 a plaintiff could show the money was intended for its 20 own use; for instance, if defendant received money as a 21 result of its scam and “induced [the money] under the 22 guise that it would be used for plaintiffs.” 23 (citation omitted). Id. The key, the court explained, was 24 that defendant “received money for the use of the 25 plaintiff.” 26 Id. (emphasis in original). Plaintiff has demonstrated there is no triable 27 issue of fact whether the Annuity payments were 28 intended for its use. The facts here slot neatly into 23 1 the example provided in Fireman’s Fund: Defendant 2 received the Annuity overpayments from her scam of 3 endorsing her mother’s signature on the checks. She 4 induced the payments under the guise that the money was 5 for Plaintiff’s use in the sense that Plaintiff would 6 send the money to fulfill its obligations to pay the 7 Annuitant under the contract. 8 Defendant insists that the money was only for the 9 Annuitant—not the insurance company Plaintiff’s—use. 10 This blinkered approach to the definition of a 11 beneficiary ignores the realities of litigating a Money 12 Had and Received claim. Per Defendant, in the instance 13 of an annuity or insurance contract, only the payee is 14 the intended beneficiary. Under Defendant’s logic, 15 only the payee can stake out a claim for Money Had and 16 Received; any time a company with an Annuity contract 17 raises a claim, it is defeated. 18 It is not uncommon that an insurance company, bank, 19 or other third-party will raise a Money Had and 20 Received claim even though the insured or payee was the 21 one who literally received the benefit of the money at 22 issue. The Fifth Circuit rejected this type of 23 argument—that a plaintiff insurance company lacked 24 “standing” because a financial recovery on the Money 25 Had and Received claim would only benefit its insured 26 after the insured’s employee had “pilfered and filched 27 checks through the financial filter of forged 28 endorsements.” Peerless Ins. Co. v. Tex. Commerce 24 1 Bank-New Braunfels, N.A., 791 F.2d 1177, 1178 (5th Cir. 2 1986). The Fifth Circuit summarily disposed of this 3 argument: 4 Whether styled as a “standing” argument or more 5 properly as an assertion that Peerless is not a 6 real party in interest, Texas Commerce's claim 7 is 8 interest in this case. Any recovery from Texas 9 Commerce reduces Peerless' obligation to North 10 American and brings Peerless closer to the point 11 where it can begin, through proceedings against 12 other parties, to recover the money it paid to 13 North American . . . [w]e refuse to accept such 14 a result. frivolous. Peerless has a real pecuniary 15 Id. at 1181. 16 Here too, allowing Plaintiff to recover from 17 Defendant would reduce its obligation to the 18 Annuitant—or in this case, her estate—and uphold its 19 contractual obligations to pay the Annuitant (the plans 20 do not designate a beneficiary to whom Plaintiff could 21 otherwise pay). Granting summary judgment as to the 22 Money Had and Received claim allows Plaintiff to start 23 recovering the $500,000 it mistakenly paid due to 24 Defendant’s avarice. Denying summary judgment based on 25 Defendant’s specious and fallacious argument that only 26 the Annuitant—and not the insurance company who paid 27 her hundreds of thousands of dollars pursuant to an 28 Annuity contract—stands to benefit from the payments 25 1 would lead to an incorrect result. 2 3 c. Whether Defendant is Indebted to Plaintiff The third element effectively measures whether 4 Defendant has returned the ill-gotten money to 5 Plaintiff. No dispute of material fact as to this 6 element exists; Defendant has yet to reimburse 7 Defendant for nearly $240,000 in wrongful proceeds. 8 Defendant did not return the payments, as evidenced by 9 letters from December 18, 2013, January 21, 2014, and 10 April 29, 2014 requesting that Defendant remit Annuity 11 overpayments from January 20, 1998 to October 20, 2013. 12 Burdick Decl. Ex. 3. In each subsequent letter, 13 Plaintiff noted that it had not received any response 14 or payment. Id. Defendant also acknowledged her 15 indebtedness to Plaintiff during the May 29, 2014 phone 16 conversation, stating that she would have to “make the 17 payments back” and requesting the contact information 18 of the Annuities Department to which she should send 19 the reimbursement. 20 d. Burdick Decl. Ex. 4 at 6, 11-12. Whether Defendant was an Innocent 21 Beneficiary that Reasonably Relied to Her 22 Detriment 23 Defendant argues that granting summary judgment on 24 the Money Had and Received claim is inappropriate even 25 if there are no genuine disputes regarding the 26 elements, as she has a viable defense. Defendant 27 argues that she is an innocent beneficiary who did not 28 know of Plaintiff’s mistaken payments and detrimentally 26 1 relied on the payments while spending the money on the 2 “necessities of life.” 3 Opp’n 4:12-13, 5:6-7. In Bank of America v. Sanati, the court briefly 4 touched upon the “detrimental reliance by an innocent 5 beneficiary” theory that Defendant espouses. In that 6 case, Mr. Sanati’s Bank of America erroneously 7 transferred an unintended principal portion ($203,750) 8 of his bank account and accrued interest to the joint 9 account he held with his wife. 10 1082 (Ct. App. 1992). 11 Cal. App. 4th 1079, The Court recognized that 11 detrimental reliance by an innocent beneficiary was a 12 “widely acknowledged” defense to restitution. 13 1084. Id. at While the court permitted the bank to receive 14 restitution from the unintended beneficiaries and 15 granted the motion for summary judgment based on a 16 different defense, Defendant’s case is distinguishable 17 from Sanati even from a cursory glance at the facts. 18 In Sanati, the court considered whether the “discharge 19 for value” rule impeded Bank of America from recovering 20 the erroneously-transferred funds. But unlike here, 21 the Sanati defendants were always intended recipients 22 of the funds; indeed, Mr. Sanati arranged for Bank of 23 America in London to send monthly accruing interest 24 from his separate account to his joint account with Ms. 25 Sanati. By contrast, Defendant was never the intended 26 recipient of the Annuity payments here—the Annuity 27 contract very clearly states that the Annuitant had no 28 designated beneficiary to receive remaining payments 27 1 after the Annuitant’s death. 2 Compl. Ex. 1. Defendant’s defense makes little sense then; if she 3 is not even a designated beneficiary for the Annuity, 4 it defies logic for her to argue that she is an 5 innocent beneficiary. This emphasis on the actual, 6 intended beneficiary in a Money Had and Received claim 7 took shape in Lowery, where the court granted summary 8 judgment for a Money Had and Received claim as to an 9 attorney defendant because the plaintiff had only paid 10 money to the attorney’s client, a motion-picture 11 distribution company. Like the attorney defendant in 12 Lowery—ancillary to the proper flow of payments between 13 plaintiff and the distribution company—Defendant is not 14 even a proper player in a Money Had and Received claim, 15 let alone an innocent beneficiary. Even if she were, 16 her argument that she is “innocent” is weakened by the 17 fact that she improperly endorsed the Annuitant’s 18 signature on countless checks. 19 In contrast to Defendant’s insistence that she did 20 not know the payments were not meant for her, the 21 Annuity contract terms clearly state that Defendant 22 never should have received Annuity payments, let alone 23 after the Annuitant had died. First, the Annuity 24 Contract from August 13, 1992 very clearly states, 25 “[w]e will make annuity payments as specified on the 26 Policy Schedule as long as the Measuring Life [Netha 27 McClendon] is living. If the Measuring Life dies before 28 all guaranteed payments have been made, the remaining 28 1 guaranteed payments will be paid, when due, to the 2 Designated Beneficiary.” Burdick Decl. Ex. 1 at 3. 3 Defendant was not a Designated Beneficiary, let alone 4 mentioned anywhere in the Annuity contract. Indeed, 5 the space to designate a beneficiary reads “Not 6 Applicable,” and states that “This section does not 7 apply if Life Only Option is chosen.” Id. at 1. The 8 annuitant had the “Single Life Immediate Annuity” 9 option. Id. Defendant wanly protests that she was 10 unaware of the contractual terms and continued to 11 endorse checks thinking she was the beneficiary, per 12 her mother and her sister’s orders. 13 4 at 7, 9; McClendon Decl. ¶ 7. Burdick Decl. Ex. This is not enough to 14 generate a triable issue of material fact. 15 Defendant’s, her mother’s, and her sister’s ignorance 16 of the Annuity terms–whether willful, imprudent, or 17 otherwise—have no place in the legal argument for Money 18 Had and Received and do not create a triable issue of 19 material fact as to this claim. 20 Contrary to Defendant’s “innocent beneficiary” 21 theory, the evidence indicates that Plaintiff 22 mistakenly paid Defendant. “A plaintiff may bring a 23 claim for money had and received if the plaintiff has 24 paid money under the mistaken belief that he was under 25 a duty to do so.” Lowery v. Blue Steel Releasing, 26 Inc., No. CV 02-0003-DSF(CTx), 2004 WL 6215611, at *7 27 (E.D. Cal. Nov. 1, 2005) (citation omitted). A 28 plaintiff is entitled to restitution for mistaken 29 1 payment if defendant induced the mistake through fraud. 2 Id. Plaintiff sent mistaken overpayments it thought it 3 owed to the Annuitant, operating under the assumption 4 that she was still alive. These mistaken payments were 5 induced through Defendant’s fraud of calling Plaintiff, 6 pretending to be her mother through corroborating 7 information, and requesting continued payments. 8 The only shred of contrary evidence Defendant 9 offers is her self-serving statements that she 10 continued to deposit payments because her mother told 11 her that she wanted Defendant and her now-deceased 12 sister, Delores McClendon, to share the Annuity 13 proceeds after her death. Opp’n 5:4-5. This mistaken 14 belief was also apparently perpetuated by Defendant’s 15 now-deceased sister. Defendant unconvincingly protests 16 that she was unaware that the Annuity was only for her 17 mother’s benefit.11 Apparently, Defendant believed that 18 the monthly payments would continue after Annuitant’s 19 death until all sums had been paid out. 20 4:27-5:1. Opp’n 5:1-3, This argument is unconvincing and has no 21 place in the elements and law for Money Had and 22 Received. 23 At bottom, Defendant fashions a theory that mistake 24 of fact or a defendant’s willful blindness to an 25 Annuity contract’s terms can dismantle a Money Had and 26 Received claim. Defendant provides no case law to 27 11 However, both are deceased and unable to provide 28 declarations or exhibits to shore up Defendant’s arguments. 30 1 support this novel theory, nor does she provide a 2 scintilla of evidence to doubt that the Annuity was 3 only intended for the Annuitant, regardless of a 4 mother’s well-meaning wishes for her daughters to 5 posthumously share in her Annuity. Accordingly, the 6 “innocent beneficiary” defense is unavailing, and there 7 is no triable issue of material fact as to any of the 8 elements required for a Money Had and Received claim. 9 10 III. CONCLUSION Based on the foregoing, the Court GRANTS 11 Plaintiff’s Motion for Partial Summary Judgment [36] 12 as to the Money Had and Received claim. 13 14 IT IS SO ORDERED. 15 16 DATED: January 26, 2017 17 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 18 19 20 21 22 23 24 25 26 27 28 31

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