                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 02 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NICK V. LUJAN; et al.,                           No.   16-16401

              Plaintiffs-Appellants,             D.C. No. 4:16-cv-00913-JSW

 v.
                                                 MEMORANDUM*
NEW YORK LIFE INSURANCE
COMPANY, a New York corporation;
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION, a Delaware
corporation,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                      Argued and Submitted October 16, 2017
                            San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and MOLLOY,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
      Nick Lujan appeals the district court’s dismissal of his complaint against

New York Life Insurance Company (New York Life) for failure to state a claim

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We have

jurisdiction under 28 U.S.C. § 1291.

      The district court granted New York Life’s motion to dismiss based on its

rulings that: (1) New York Life was exempt from the requirement that “interest

shall not be compounded . . . unless an agreement to that effect is clearly expressed

in writing and signed by the party to be charged therewith,” Cal. Civ. Code § 1916-

2 (the disclosure requirement); and, in the alternative, (2) New York Life complied

with the disclosure requirement. Because California law in this area was unsettled,

we certified two questions respecting these issues to the California Supreme Court,

see Wishnev v. Nw. Mut. Life Ins. Co., 880 F.3d 493, 495 (9th Cir. 2018), which

subsequently answered the first of our two questions, see Wishnev v. Nw. Mut. Life

Ins. Co., No. S246541, 2019 WL 5996921 (Cal. Nov. 14, 2019).

      Under the California Supreme Court’s ruling, lenders that are exempt from

restrictions on interest rates under Article XV, section 1 of the California

Constitution, see Cal. Const. art XV, § 1, are exempt from the disclosure

requirement in section 1916-2 of the California Civil Code, Wishnev, 2019 WL

5996921, at *11. On appeal, the parties assumed that New York Life was an


                                           2
exempt lender under section 1100.1 of the California Insurance Code at the

relevant time. See id. at *5, 11 n.17. Therefore, under the California Supreme

Court’s ruling, and assuming that New York Life was an exempt lender at the

relevant time,1 New York Life is exempt from the disclosure requirement and

Lujan’s Complaint fails to state a claim.

      AFFIRMED.




      1
          Because the parties “assumed that [New York Life] was an exempt lender
at all relevant times” and did not address the question “whether a lender’s
designation as exempt under article XV applies retroactively to a loan that may
predate the designation,” Wishnev, 2019 WL 5996921, at *11 n.17, we do not
consider this issue.
                                            3
