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finding no genuine dispute of material fact as to whether plaintiff had proven the elements of her "Money Had and Received Claim," which includes " defendant received money; the money defendant received was for plaintiff's use; and defendant is indebted to plaintiff"
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CV 15–3771–RSWL–Ex
01-26-2017
The LINCOLN NATIONAL LIFE INSURANCE COMPANY, Plaintiff, v. Pamela MCCLENDON, Defendant.
Daniel S. Imber, Imber Law Group, A Professional Corporation, Beverly Hills, CA, for Plaintiff. Rickey Ivie, Ivie McNeill and Wyatt APC, Los Angeles, CA, for Defendant.
Daniel S. Imber, Imber Law Group, A Professional Corporation, Beverly Hills, CA, for Plaintiff.
Rickey Ivie, Ivie McNeill and Wyatt APC, Los Angeles, CA, for Defendant.
ORDER re: Plaintiff's Motion for Partial Summary Judgment or in the Alternative Summary Adjudication [36]
HONORABLE RONALD S.W. LEW, Senior U.S. District Judge
Currently before the Court is Plaintiff The Lincoln National Life Insurance Company's ("Plaintiff") Motion for Partial Summary Judgment, or in the Alternative, Summary Adjudication ("Motion") as to its claim for Money Had and Received against Defendant Pamela McClendon ("Defendant") [36]. Having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS : The Court GRANTS Plaintiff's Motion [36].
I. BACKGROUND
A. Factual Background
Plaintiff is an Indiana corporation authorized to do business in California. Compl. ¶ 1, ECF No. 1. Defendant is the daughter of Netha McClendon, the recipient of an annuity ("the Annuitant"). Id. at ¶ 5.
On August 13, 1992, Alexander Hamilton Life Insurance Company of America issued a Single Life Immediate Annuity, No. 4000073334 ("the Annuity") to the Annuitant. Id. ; Compl. Ex. 1, ECF No. 1–1. In October 1995, Jefferson Pilot Life Insurance Company ("Jefferson") acquired the Annuity. Id. at ¶ 6. In April 2007, after merging with Jefferson, Plaintiff acquired ownership of the Annuity and its rights/obligations. Id. Starting September 20, 1992, the Annuitant would receive $3,000.00 monthly under the "Single Life Immediate Annuity—Life Only" option. Id. at ¶ 7; Compl. Ex. 1. Pursuant to the Annuity, Plaintiff would make payments "as long as the Measuring Life [the Annuitant] is living." See Compl. ¶¶ 8, 9, Ex. 1 at 8. If the Annuitant died before all payments were made, "the remaining guaranteed payments will be paid, when due, to the Designated Beneficiary." Id. The "Beneficiary" box on the Annuitant's contract states: "Not Applicable." Compl. Ex. 1.
The Annuitant died on January 6, 1998. Compl. ¶¶ 9, 10. Defendant did not inform Plaintiff of the Annuitant's death. Id. at ¶ 13. As a result, Plaintiff made 190 monthly payments to Annuitant—who it thought was still alive—from January 1998 to October 2013, totaling $570,000. Id. at ¶¶ 10, 16. The checks were sent to the Annuitant's last-known address, where Plaintiff alleges Defendant was living. Id. at ¶ 11. Plaintiff alleges that Defendant deposited the mistaken overpayments into her bank account. Id. Sometime in 2006, the Annuitant purportedly signed a Deed of Trust transferring her property to Defendant, even though the Annuitant had been dead for eight years. Decl. of Douglas Burdick ("Burdick Decl.") ¶ 4, Ex. 2, ECF No. 36–2. On March 6, 2009, a caller identifying herself as the Annuitant allegedly called Plaintiff, provided a birth date and social security number, and requested reinstatement of payments. Id. at ¶ 7, Ex. 5, ECF No. 36–2.
Plaintiff alleges that it was unaware of the overpayments until October 2013. Compl. ¶ 16. On December 18, 2013, Plaintiff sent letters to the Annuitant's family, informing them of the overpayments and requesting reimbursement. Id. at ¶ 17. On May 19, 2014, Defendant allegedly admitted responsibility for the overpayments, but has yet to pay any of them back. Id. at ¶¶ 18–19.
B. Procedural Background
On May 19, 2015, Plaintiff filed its Complaint, alleging the following claims: (1) Unjust Enrichment; (2) Money Had and Received; (3) Money Paid; (4) Conversion; (5) Imposition of a Constructive Trust. Compl. ¶¶ 21–23; 28–29; 35; 40; 45.
On December 21, 2016, the final day of its motion filing cut-off date, Plaintiff filed the instant Motion as to the Claim for Money Had and Received and its Separate Statement of Uncontroverted Facts and Conclusions of Law ("SUF") [36–1]. Defendant's Opposition was due on January 3, 2017. Defendant missed this deadline and filed an ex parte application requesting an extension of time to file the Opposition [40]. The Court granted the ex parte application, allowing Defendant until 5 P.M. on January 6, 2017 to file its Opposition [42]. On January 6, Defendant filed its Opposition, Statement of Genuine Issues of Material Fact, Objections to Plaintiff's Motion, and Declarations [46, 47, 49]. Plaintiff's Reply was timely filed on January 10, 2017 [51].
II. FINDINGS OF FACT
1. The Annuitant died on January 6, 1998. Pl's Facts ¶ 5; see Decl. of Daniel S. Imber ("Imber Decl."), Ex. 7 at 10:4–5, ECF No. 36–3.
2. The Annuity Contract provided for a monthly benefit payment of $3,000 under the Life Only option. Pl.'s Stmt. of Uncontroverted Facts ("Pl.'s Facts") ¶ 2, ECF No. 36–1; see Decl. of Douglas Burdick ("Burdick Decl.") ¶ 3, Ex. 1, ECF No. 36–2 (undisputed).3. Between January 12, 2007 and October 14, 2013, Plaintiff issued 80 checks, $3,000 each, payable and addressed to the Annuitant, Netha McClendon. Pl.'s Facts ¶ 4; see Burdick Decl. ¶ 8, Ex. 6 (undisputed).
III. DISCUSSION
A. Legal Standard
1. Motion for Summary Judgment
Federal Rule of Civil Procedure 56 states that a "court shall grant summary judgment" when the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The party moving for summary judgment has the initial burden of proof to show "no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a) ; In re Oracle Corp. Securities Litigation , 627 F.3d 376, 387 (9th Cir. 2010). "A party asserting that a fact cannot be ... genuinely disputed must support the assertion by: citing to particular materials in the record, including ... stipulations." Fed. R. Civ. P. 56(c)(1)(A). "In determining any motion for summary judgment ..., the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the ‘Statement of Genuine Disputes' and (b) controverted by declaration or other written evidence filed in opposition to the motion." Local Rule 56–3.
Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case. In re Oracle Corp. , 627 F.3d at 387. If the moving party meets this burden, the burden then shifts to the non-moving party to produce admissible evidence showing a triable issue of fact. Id. ; Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102–03 (9th Cir. 2000) ; see Fed. R. Civ. P. 56(a).
2. Partial Summary Judgment
Federal Rule of Civil Procedure 56(g) authorizes courts to grant partial summary judgment in order to limit the issues to be tried in a case. State Farm Fire & Cas. Co. v. Geary , 699 F.Supp. 756, 759 (N.D. Cal. 1987) (citing Lies v. Farrell Lines, Inc. , 641 F.2d 765, 769 n.3 (9th Cir. 1981) ). Absent a specific statute authorizing otherwise, a partial summary judgment under Rule 56(g) is not a final judgment but rather an interlocutory summary adjudication or a pre-trial order, neither of which is appealable prior to the entry of a final judgment in the case. Wynn v. Reconstruction Fin. Corp. , 212 F.2d 953, 956 (9th Cir. 1954).
B. Analysis
1. Defendant's Evidentiary Objections
a. Objections to Plaintiff's Exhibits
Defendant objects to the copy of the Annuity contract and Call Log Transcript and Log Notes—reflecting the March 2009 and May 2014 phone conversations—on the grounds of improper authentication, hearsay, and lack of foundation. Def.'s Objs. To Decl. & Exs. ("Def.'s Objs.") 2:8–13, ECF No. 49; Burdick Decl. Exs. 1–2; 4–5.
"A document which lacks a proper foundation to authenticate it cannot be used to support a motion for summary judgment." Hal Roach Studios Inc. v. Richard Feiner & Co., Inc. , 896 F.2d 1542, 1551 (9th Cir. 1989). As required by Rule 56, documentary materials need authentication through affidavits or declarations from individuals with personal knowledge of the document. Zoslaw v. MCA Distrib. Corp. , 693 F.2d 870, 883 (9th Cir. 1982).
The aforementioned documentary evidence to which Defendant objects was properly authenticated in the Supplemental Declaration of Douglas Burdick, attached to Plaintiff's Reply. Mr. Burdick is Plaintiff's Vice President and custodian of records with personal knowledge of these business records. Supp. Decl. of Douglas F. Burdick ("Supp. Burdick Decl.") ¶ 1, ECF No. 51–1. Mr. Burdick demonstrates personal knowledge of the declaration's contents as Plaintiff's Vice President who personally reviewed and is "familiar with the files in this Action, the records of Plaintiff as they pertain to this matter, and Plaintiff's policies." Id. ; Curley v. Wells Fargo & Co. , 120 F.Supp.3d 992, 998–99 (N.D. Cal. 2015) (Vice President of Loan Documentation who personally reviewed loan-related records at issue and affirmed that records were made in ordinary course of business established her familiarity with the records).
Moreover, although Defendant objects to the documentary evidence as inadmissible hearsay, the evidence fits within the business-records exception. As set forth in the declaration, the records were made at or near the time of the recorded events and maintained in the ordinary course of Plaintiff's business by an individual with personal knowledge. Supp. Burdick Decl. ¶ 1. As such, the Court OVERRULES Defendant's objections on hearsay, lack of foundation, and lack of authentication grounds to the Annuity Contract, Transcript from Call Logs and log notes, and March 6, 2009 copy of the log notes prepared by Plaintiff's customer service representatives [49].
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).
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.
b. Objections to Douglas Burdick Declaration
Defendant objects to several paragraphs of the Burdick Declaration [36–2]. Defendant objects on largely redundant grounds: lack of personal knowledge, hearsay, relevance, conclusory/lacks foundation. See generally Def.'s Objs.
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.
Because many of Defendant's objections are boilerplate and "devoid of any specific argument or analysis as to why any particular exhibit or assertion in a declaration should be excluded," United States v. HVI Cat Canyon, Inc. , 213 F.Supp.3d 1249, 2016 WL 7011348, at *5 (C.D. Cal. Sept. 30, 2016), the Court OVERRULES all of Defendant's objections as to paragraphs 3, 6, 7, and 10 of the Burdick Declaration [49]. See Amaretto Ranch Breedables v. Ozimals, Inc. , 907 F.Supp.2d 1080, 1081 (N.D. Cal. 2012) (summarily overruling boilerplate objections that parties failed to develop); Doe v. Starbucks, Inc. , No. SACV 08-0582 AG, 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009) ("[I]n motions for summary judgment with numerous objections, it is often unnecessary and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised.")
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, 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.
Even if the evidentiary objections are pertinent, the Court is not satisfied that it should strike any of the contested paragraphs in the Burdick Declaration. Indeed, many of Defendant's rote objections can be handled in one fell swoop. Many of the statements Mr. Burdick makes are objected to as lacking personal knowledge and conclusory/lacks foundation. Pursuant to Federal Rule of Evidence 602, "[e]vidence to prove personal knowledge may consist of the witness's own testimony." As Plaintiff's Vice President and custodian of records, Burdick Decl. ¶¶ 1, 2, Mr. Burdick states that he has personal knowledge—and he plausibly does—of Plaintiff's business records, including the Annuity contract, call logs, call transcripts, and Plaintiff's general practice of learning of an annuitant's death after checks are returned or family members contact Plaintiff.
The hearsay objections can also be disposed of because many of the documents at issue are admissible under the business-records exception, party admissions, or admissions against interest. Supp. Burdick Decl. ¶¶ 1, 2 ("[T]he records ... were made at or about the time of the events recorded, and are maintained in the ordinary course of Lincoln's business.") And the relevance objections to paragraphs 6, 7, and 10 are also improper, as the pieces of evidence objected to all have a tendency to prove or disprove material elements of the Money Had and Received claim, including whether Defendant received the money at issue.
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.
2. Plaintiff's Evidentiary Objections
a. Objections to Pamela McClendon Declaration
Plaintiff objects to the Declaration and Supplemental Declaration of Pamela McClendon [46–1, 50] as they are unsigned and impermissibly contain her "e-signature," and lack credibility. Plaintiff also generally objects to statements in the Declaration that Defendant's sister and mother communicated to her as inadmissible hearsay. The Court OVERRULES each of these objections.
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.
Plaintiff objects to the McClendon Declaration as lacking credibility and self-serving because it contradicts statements made during Defendant's deposition. The sham affidavit rule prevents a party from "creat [ing] an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. Int'l Game Tech. , 577 F.3d 989, 998 (9th Cir. 2009). The Court must make a factual finding that (1) the contradiction is a "sham;" and the (2) "inconsistency between a party's deposition testimony and subsequent [declaration] ... is clear and unambiguous." Id. Plaintiff highlights inconsistences between the declaration and Defendant's deposition testimony. For example, she states that she only started depositing the Annuitant's checks in April 2012 after her sister died. McClendon Decl. ¶ 7. But in her deposition, she testified that she deposited checks long before her sister's death. McClendon Dep. 40:19–41:14, Dec. 6, 2016, ECF No. 36–3. Plaintiff also contrasts Defendant's statement that she relied on what her mother and sister told her (rather than the Annuity contract) with her deposition testimony that she never spoke to her mother about the Annuity. Compare McClendon Decl. ¶ 9, with McClendon Dep. 40:19–41:14.
These alleged inconsistencies are insufficient to render the declaration a sham. The aforementioned contradictions are not necessarily a "sham" but may be more so a symptom of Defendant's own confusion as to the precise timeline of events or her attempt to clarify her prior testimony. Messick v. Horizon Indus., Inc. , 62 F.3d 1227, 1231 (9th Cir. 1995) ("[M]inor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.") Similarly, the Court cannot say with certainty that the inconsistencies are clear and unambiguous. In her declaration, Defendant states that she "relied upon what my mother and sister told me," but it is unclear whether this refers to conversations about the Annuity or other matters. The Court cannot confidently say that this is clearly inconsistent with her deposition testimony that she never spoke to her mother regarding the Annuity. And the deposition testimony makes no palpable contradiction as to conversations had with her sister. Because the Court should not make definitive credibility determinations on a Motion for Summary Judgment, and the sham affidavit rule is typically cautiously applied, the Court OVERRULES Plaintiff's objections to the McClendon Declaration. Van Asdale , 577 F.3d at 998.
The Court also OVERRULES Plaintiff's hearsay objection to any statements in the McClendon Declaration made by the Annuitant or Delores McClendon. Reply 7:19–21. Problematically, Plaintiff 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).
b. Objections to Chandler Parker Declaration
Plaintiff objects to the Declaration of Chandler Parker [48] because the declarant "did not attach identifying information for the discovery responses and misstates the evidence." Reply 7:22–24. Discovery documents produced during a Motion for Summary Judgment require proper authentication through a declaration. The Court OVERRULES this objection, as it sees no issue with the copy of Plaintiff's internal policy and AWD History Report, as they were produced during discovery and Plaintiff apparently does not contest their authenticity but instead vaguely complains that they lack "identifying information." Maljack Prods., Inc. v. GoodTimes Home Video Corp. , 81 F.3d 881, n.12 (9th Cir. 1996) (documents on party's letterhead and produced during discovery, attached to a declaration were properly admitted.)
The Court also OVERRULES the objection that the Parker Declaration misstates the evidence. 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.
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.
3. Whether the Claim is Barred by the Statute of Limitations
Before deciding whether there is a genuine dispute of material fact for the Money Had and Received claim, the Court must contend with whether its applicable statute of limitations has lapsed.
A claim for Money Had and Received is essentially an action on an implied contract and thus is subject to a two-year statute of limitations. See Murphy v. Am. Gen. Life Ins. Co. , 74 F.Supp.3d 1267, 1280 (C.D. Cal. 2015) ; Cal. Code Civ. Proc. § 339(1) (two-year limitations period applies to actions for contracts "not founded upon an instrument of writing.") The statute of limitations accrues upon plaintiff's "discovery of the loss or damage." Code Civ. Proc. § 339(1).
The parties dispute the precise date when the statute of limitations began to run. The Complaint was filed on May 19, 2015 [1]. Defendant argues that the Action accrued in January 2009, when Plaintiff discovered the Annuitant's death by using its Repetitive Payment System Pension Benefit Inquiry ("RPSPBI") system to cross-check her against the Social Security Index. Opp'n 6:21–23; Parker Decl. Ex. A, ECF No. 48–2. At the very least, Defendant argues, whether Plaintiff had inquiry notice at this time is a question of fact for the jury. Id. at 7:1–2. Plaintiff counters that in March 2009, an individual—at the time, Plaintiff assumed the Annuitant—called Plaintiff, furnished the Annuitant's birth date and social security number to indicate she was still alive, and continued to endorse and deposit the reinstated Annuity payments. Reply 3:19–26; Burdick Decl. ¶ 7, Ex. 5. These fraudulent activities tolled the statute of limitations until at least October 2013, when Plaintiff learned of the Annuitant's death. Id. at 3:26–4:1.
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.
Defendant offers evidence, in the form of Plaintiff's interrogatory responses, that Plaintiff typically runs RPSPBI reports to determine if an annuitant has died and its admission that it received a report in January 2009 indicating that Annuitant may have died. Parker Decl. Ex. B, ECF No. 48–2. Defendant also proffers an AWD History report showing Plaintiff's access to the Social Security Index that would tell it that Annuitant had died. Defendant uses this evidence to make much of Plaintiff's January 2009 discovery of the Annuitant's death. But Plaintiff never disputes that it received a report in January 2009 of the Annuitant's death and properly ceased Annuity payments. Mot. 3:21. The precise issue, rather, is whether the statute of limitations was tolled beginning in March 2009 when Defendant purportedly called Plaintiff, pretending to be the Annuitant.
The statute of limitations may be tolled under the doctrine of fraudulent concealment. "[W]hen the defendant is guilty of fraudulent concealment of the cause of action the statute [of limitations] is deemed not to become operative until the aggrieved party discovers the existence of the cause of action." Yumul v. Smart Balance, Inc. , 733 F.Supp.2d 1117, 1130 (C.D. Cal. 2010) (internal quotation marks omitted) (quoting Unruh–Haxton v. Regents of Univ. o f Cal. , 162 Cal.App.4th 343, 367, 76 Cal.Rptr.3d 146 (Ct. App. 2008) ).
Even if January 2009 is the logical starting point and assuming that the Action was feasibly barred by the two-year statute of limitations, Plaintiff has set forth sufficient evidence that the statute of limitations is tolled by the fraudulent concealment doctrine. Although the RPSPBI indicated Annuitant's death, a call log from March 6, 2009 states that the "Annuitant" called, "inquiring as to where her 2–20–09 check is." Burdick Decl. Ex. 5 at 1. Plaintiff's representative verified the alleged Annuitant's social security number and birth date, "believ[ing] it was her." Id. A same-day call with a different representative states that the Annuitant "is obviously not deceased." Id. at 2. Again, the "Annuitant" verified her social security number and date of birth. Id.
There is no genuine dispute of material fact as to whether the statute of limitations is tolled by Defendant's fraudulent concealment of the fact that she wrongfully retained Annuity payments owed to her deceased mother. For fraudulent concealment to toll the statute of limitations, something more than nondisclosure is required. Affirmatively deceptive conduct will suffice. Yumul , 733 F.Supp.2d at 1131. Defendant affirmatively misrepresented to Plaintiff that the Annuitant was alive—even though she had been deceased for eleven years—by requesting continued Annuity payments and furnishing the Annuitant's identifying information to continue said benefits. The affirmatively deceptive conduct continued in earnest from 2009 to 2013. Plaintiff believed the Annuitant was still alive and continued to believe so, as Defendant endorsed checks on behalf of her mother, the intended Annuitant, by signing them "Netha McClendon," from April 12, 2009 to October 14, 2013. Burdick Decl. Ex. 6 at 26–80; Acme Paper Co. v. Goffstein , 125 Cal.App.2d 175, 180, 270 P.2d 505 (Ct. App. 1954) (fraudulent concealment tolled statute of limitations in money had and received claim where employee falsely represented his role and fraudulently endorsed thirty-four different checks).
Fraudulent concealment tolls the statute of limitations "until plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the facts on which its cause of action is based." Sears, Roebuck & Co. v. Blade , 139 Cal.App.2d 580, 587, 294 P.2d 140 (Ct. App. 1956). Only by May 29, 2014 did Plaintiff actually discover that Defendant had been depositing the mistaken payments, when she admitted to Plaintiff's representative that she had received the payments after her sister died, that they "went in [Defendant's] account," and that she would need to pay Plaintiff back. Burdick Decl. Ex. 4 at 7. And even through reasonable diligence, it is unlikely that following up with the Annuitant would have unveiled Defendant's scheme, as she was allegedly convinced that she was owed the Annuity payments and steadfastly committed to providing the Annuitant's personal information to receive more checks. Moreover, Plaintiff's policy in 2009, of accepting telephonic verification of a birth date and social security number as confirmation of an annuitant's identity—coupled with Plaintiff's lack of a mechanism to investigate wrongful receipt of annuity payments—suggests that it was reasonable of Plaintiff not to automatically assume that any caller verifying an annuitant's information was a family member or shadowy figure wrongfully receiving annuity payments. Indeed, the egregiousness and outlandishness of Defendant's actions—regardless of her claimed mistake of fact—underscores that Plaintiff acted with reasonable diligence. Sears , 139 Cal.App.2d at 591, 294 P.2d 140 ("[W]hether [Plaintiff] acted as a reasonably prudent [person] in not investigating [Defendant] must be viewed in the factual setting in which it was made.")
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.
In sum, Defendant does not counter Plaintiff's adequate evidence that supports tolling the statute of limitations until at least October 2013. The only scintilla of evidence that Defendant offers otherwise is that Plaintiff knew of the Annuitant's death as early as January 2009. Once again, Plaintiff does not contest this and it would have permanently ceased payments but for Defendant's fraudulent concealment. Thus, there is no genuine dispute as to whether the statute of limitations merited tolling until October 2013. The Complaint was appropriately filed in May 2015.
4. Money Had and Received
The Court now turns to whether there is a genuine dispute of material fact as to whether Plaintiff has proven its Money Had and Received Claim.
A claim for Money Had and Received makes a defendant indebted to a plaintiff "for money had and received by the defendant for the use of the plaintiff." Kandel v. Brother Int'l Corp. , No. CV 08-1040 DSF, 2009 WL 9100406, at *1 (C.D. Cal. Feb. 13, 2009) (citation omitted). Although the claim is one at law, it arises in equity when "one person has received money which belongs to another and which in equity and good conscience ... should be returned." Hendrickson v. Octagon, Inc. , Nos. 14-cv-01416 CRB, 225 F.Supp.3d 1013, 1032, 2016 WL 7033781, at *13 (N.D. Cal. Dec. 2, 2016) (internal quotation marks omitted) (quoting Mains v. City. Title Ins. Co. , 34 Cal.2d 580, 586, 212 P.2d 873 (1949) ). The elements are as follows: (1) defendant received money; (2) the money defendant received was for plaintiff's use; and (3) defendant is indebted to plaintiff. Fireman's Fund Ins. Co. v. Commerce & Indus. Co. , No. C-98-1060VRW, 2000 WL 1721080, at *8 (N.D. Cal. Nov. 7, 2000).
a. Whether Defendant Received Money
The Court gleans no genuine issue of material fact as to the evidence regarding this element. Plaintiff presents 80 checks, totaling $240,000, endorsed by "Netha McClendon," the Annuitant, from January 2007 to October 2013, long after her death in January 1998. Burdick Decl. Ex. 6. Defendant herself admits that she deposited checks from Plaintiff into the joint bank account she had with her deceased mother, McClendon Decl. ¶ 7, and endorsed each check in her mother's (the Annuitant) name. Id. Defendant's December 2016 deposition also leaves little doubt that she received and endorsed at least 80 checks from January 2007 to October 2013. McClendon Dep. 82:15–24, 83:24–84:2.
b. Whether the Money Received was for Plaintiff's Use
Defendant argues that because Plaintiff intended to pay the Annuitant, Netha McClendon, Plaintiff cannot be the intended beneficiary. Opp'n 7:11–14. Plaintiff counters that the Annuity payments were made for its own benefit because it was fulfilling its contractual obligations to pay the Annuitant under the contract. Reply 4:15–16.
In Fireman's Fund , the insurer defendant received $27,264,500 in a subrogation claim against a third-party insurer. 2000 WL 1721080, at *1. Plaintiffs raised a claim for Money Had and Received, claiming entitlement to this amount because they paid $5 million to the insured and thus gained an assignment of the insured's rights. Id. at *7. Plaintiffs could not, however, show that any of the amount defendant received from a third-party insurer was for plaintiffs' use. The court stated: "defendant pursued subrogation against [the third-party insurers] by itself; plaintiffs elected not to join in the action ... [p]laintiffs may have had a separate subrogation claim against those third-party insurers based on its $5 million payment to the insured. But plaintiffs cannot establish that any portion of the money received by defendant was for plaintiffs' use." Id. at *8. Nevertheless, the court noted circumstances under which a plaintiff could show the money was intended for its own use; for instance, if defendant received money as a result of its scam and "induced [the money] under the guise that it would be used for plaintiffs." Id. (citation omitted). The key, the court explained, was that defendant "received money for the use of the plaintiff. " Id. (emphasis in original).
Plaintiff has demonstrated there is no triable issue of fact whether the Annuity payments were intended for its use. The facts here slot neatly into the example provided in Fireman's Fund : Defendant received the Annuity overpayments from her scam of endorsing her mother's signature on the checks. She induced the payments under the guise that the money was for Plaintiff's use in the sense that Plaintiff would send the money to fulfill its obligations to pay the Annuitant under the contract.
Defendant insists that the money was only for the Annuitant—not the insurance company Plaintiff's—use. This blinkered approach to the definition of a beneficiary ignores the realities of litigating a Money Had and Received claim. Per Defendant, in the instance of an annuity or insurance contract, only the payee is the intended beneficiary. Under Defendant's logic, only the payee can stake out a claim for Money Had and Received; any time a company with an Annuity contract raises a claim, it is defeated.
It is not uncommon that an insurance company, bank, or other third-party will raise a Money Had and Received claim even though the insured or payee was the one who literally received the benefit of the money at issue. The Fifth Circuit rejected this type of argument—that a plaintiff insurance company lacked "standing" because a financial recovery on the Money Had and Received claim would only benefit its insured after the insured's employee had "pilfered and filched checks through the financial filter of forged endorsements." Peerless Ins. Co. v. Tex. Commerce Bank–New Braunfels, N.A. , 791 F.2d 1177, 1178 (5th Cir. 1986). The Fifth Circuit summarily disposed of this argument:
Whether styled as a "standing" argument or more properly as an assertion that Peerless is not a real party in interest, Texas Commerce's claim is frivolous. Peerless has a real pecuniary interest in this case. Any recovery from Texas Commerce reduces Peerless' obligation to North American and brings Peerless closer to the point where it can begin, through proceedings against other parties, to recover the money it paid to North American ... [w]e refuse to accept such a result.
Id. at 1181.
Here too, allowing Plaintiff to recover from Defendant would reduce its obligation to the Annuitant—or in this case, her estate—and uphold its contractual obligations to pay the Annuitant (the plans do not designate a beneficiary to whom Plaintiff could otherwise pay). Granting summary judgment as to the Money Had and Received claim allows Plaintiff to start recovering the $500,000 it mistakenly paid due to Defendant's avarice. Denying summary judgment based on Defendant's specious and fallacious argument that only the Annuitant—and not the insurance company who paid her hundreds of thousands of dollars pursuant to an Annuity contract—stands to benefit from the payments would lead to an incorrect result.
c. Whether Defendant is Indebted to Plaintiff
The third element effectively measures whether Defendant has returned the ill-gotten money to Plaintiff. No dispute of material fact as to this element exists; Defendant has yet to reimburse Defendant for nearly $240,000 in wrongful proceeds. Defendant did not return the payments, as evidenced by letters from December 18, 2013, January 21, 2014, and April 29, 2014 requesting that Defendant remit Annuity overpayments from January 20, 1998 to October 20, 2013. Burdick Decl. Ex. 3. In each subsequent letter, Plaintiff noted that it had not received any response or payment. Id. Defendant also acknowledged her indebtedness to Plaintiff during the May 29, 2014 phone conversation, stating that she would have to "make the payments back" and requesting the contact information of the Annuities Department to which she should send the reimbursement. Burdick Decl. Ex. 4 at 6, 11–12.
d. Whether Defendant was an Innocent Beneficiary that Reasonably Relied to Her Detriment
Defendant argues that granting summary judgment on the Money Had and Received claim is inappropriate even if there are no genuine disputes regarding the elements, as she has a viable defense. Defendant argues that she is an innocent beneficiary who did not know of Plaintiff's mistaken payments and detrimentally relied on the payments while spending the money on the "necessities of life." Opp'n 4:12–13, 5:6–7.
In Bank of America v. Sanati , the court briefly touched upon the "detrimental reliance by an innocent beneficiary" theory that Defendant espouses. In that case, Mr. Sanati's Bank of America erroneously transferred an unintended principal portion ($203,750) of his bank account and accrued interest to the joint account he held with his wife. 11 Cal.App.4th 1079, 1082, 14 Cal.Rptr.2d 615 (Ct. App. 1992). The Court recognized that detrimental reliance by an innocent beneficiary was a "widely acknowledged" defense to restitution. Id. at 1084, 14 Cal.Rptr.2d 615. While the court permitted the bank to receive restitution from the unintended beneficiaries and granted the motion for summary judgment based on a different defense, Defendant's case is distinguishable from Sanati even from a cursory glance at the facts. In Sanati , the court considered whether the "discharge for value" rule impeded Bank of America from recovering the erroneously-transferred funds. But unlike here, the Sanati defendants were always intended recipients of the funds; indeed, Mr. Sanati arranged for Bank of America in London to send monthly accruing interest from his separate account to his joint account with Ms. Sanati. By contrast, Defendant was never the intended recipient of the Annuity payments here—the Annuity contract very clearly states that the Annuitant had no designated beneficiary to receive remaining payments after the Annuitant's death. Compl. Ex. 1.
Defendant's defense makes little sense then; if she is not even a designated beneficiary for the Annuity, it defies logic for her to argue that she is an innocent beneficiary. This emphasis on the actual, intended beneficiary in a Money Had and Received claim took shape in Lowery , where the court granted summary judgment for a Money Had and Received claim as to an attorney defendant because the plaintiff had only paid money to the attorney's client, a motion-picture distribution company. Like the attorney defendant in Lowery —ancillary to the proper flow of payments between plaintiff and the distribution company—Defendant is not even a proper player in a Money Had and Received claim, let alone an innocent beneficiary. Even if she were, her argument that she is "innocent" is weakened by the fact that she improperly endorsed the Annuitant's signature on countless checks.
In contrast to Defendant's insistence that she did not know the payments were not meant for her, the Annuity contract terms clearly state that Defendant never should have received Annuity payments, let alone after the Annuitant had died. First, the Annuity Contract from August 13, 1992 very clearly states, "[w]e will make annuity payments as specified on the Policy Schedule as long as the Measuring Life [Netha McClendon] is living. If the Measuring Life dies before all guaranteed payments have been made, the remaining guaranteed payments will be paid, when due, to the Designated Beneficiary." Burdick Decl. Ex. 1 at 3. Defendant was not a Designated Beneficiary, let alone mentioned anywhere in the Annuity contract. Indeed, the space to designate a beneficiary reads "Not Applicable," and states that "This section does not apply if Life Only Option is chosen." Id. at 1. The annuitant had the "Single Life Immediate Annuity" option. Id. Defendant wanly protests that she was unaware of the contractual terms and continued to endorse checks thinking she was the beneficiary, per her mother and her sister's orders. Burdick Decl. Ex. 4 at 7, 9; McClendon Decl. ¶ 7. This is not enough to generate a triable issue of material fact. Defendant's, her mother's, and her sister's ignorance of the Annuity terms—whether willful, imprudent, or otherwise—have no place in the legal argument for Money Had and Received and do not create a triable issue of material fact as to this claim.
Contrary to Defendant's "innocent beneficiary" theory, the evidence indicates that Plaintiff mistakenly paid Defendant. "A plaintiff may bring a claim for money had and received if the plaintiff has paid money under the mistaken belief that he was under a duty to do so." Lowery v. Blue Steel Releasing, Inc. , No. CV 02-0003-DSF, 2005 WL 6215611, at *7 (E.D. Cal. Nov. 1, 2005) (citation omitted). A plaintiff is entitled to restitution for mistaken payment if defendant induced the mistake through fraud. Id. Plaintiff sent mistaken overpayments it thought it owed to the Annuitant, operating under the assumption that she was still alive. These mistaken payments were induced through Defendant's fraud of calling Plaintiff, pretending to be her mother through corroborating information, and requesting continued payments.
The only shred of contrary evidence Defendant offers is her self-serving statements that she continued to deposit payments because her mother told her that she wanted Defendant and her now-deceased sister, Delores McClendon, to share the Annuity proceeds after her death. Opp'n 5:4–5. This mistaken belief was also apparently perpetuated by Defendant's now-deceased sister. Defendant unconvincingly protests that she was unaware that the Annuity was only for her mother's benefit. Apparently, Defendant believed that the monthly payments would continue after Annuitant's death until all sums had been paid out. Opp'n 5:1–3, 4:27–5:1. This argument is unconvincing and has no place in the elements and law for Money Had and Received.
However, both are deceased and unable to provide declarations or exhibits to shore up Defendant's arguments.
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At bottom, Defendant fashions a theory that mistake of fact or a defendant's willful blindness to an Annuity contract's terms can dismantle a Money Had and Received claim. Defendant provides no case law to support this novel theory, nor does she provide a scintilla of evidence to doubt that the Annuity was only intended for the Annuitant, regardless of a mother's well-meaning wishes for her daughters to posthumously share in her Annuity. Accordingly, the "innocent beneficiary" defense is unavailing, and there is no triable issue of material fact as to any of the elements required for a Money Had and Received claim.
IV. CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiff's Motion for Partial Summary Judgment [36] as to the Money Had and Received claim.