                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 08 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


KEITH WARKENTIN,                      )       No. 15-16182
                                      )
       Plaintiff-Appellant,           )       D.C. No. 1:10-cv-00221-SAB
                                      )
       v.                             )       MEMORANDUM*
                                      )
FEDERATED LIFE INSURANCE )
COMPANY, a Minnesota                  )
corporation registered to do business )
in California,                        )
                                      )
       Defendant-Appellee,            )
                                      )

                    Appeal from the United States District Court
                        for the Eastern District of California
                 Stanley Albert Boone, Magistrate Judge, Presiding

                             Submitted April 17, 2017**
                              San Francisco, California

Before: FERNANDEZ and MURGUIA, Circuit Judges, and CURIEL,*** District
Judge.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
      Keith Warkentin appeals the district court’s grant of summary judgment in

favor of Federated Life Insurance Company, on the counterclaims for rescission

and declaratory judgment that Federated pled against Warkentin after he filed an

action against Federated when it refused to make further payments under a

disability income policy that it had issued to him. We affirm.

      Federated sought rescission and declaratory relief on the basis that

Warkentin had made a fraudulent misrepresentation when he applied for a

disability income policy. At the threshold, Warkentin asserts that Federated

waived its right to rescind because it did not assert the right in a timely fashion.1

We disagree. Assuming that Warkentin’s assertion was itself properly raised at the

district court, a dubious proposition,2 the record fully supported the district court’s



      1
        Our consideration of this and the other issues we address is, as the parties
agreed, essentially based upon the record and the motion papers filed before the
district court at the time set for hearing the summary judgment motion in March
2012, including Warkentin’s late-filed opposition to the summary judgment
motion. The district court did, however, also consider Federated’s reply in support
of the motion and some additional briefing on the law. Incidentally, the district
court did not abuse its discretion when it determined that Warkentin’s opposition
had been untimely filed and that the untimeliness was not due to excusable neglect.
See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258, 1261 (9th Cir. 2010).
In any event, the district court did consider the opposition.
      2
       He did not raise it in his responsive pleading. See Fed. R. Civ. P. 8(c)(1);
see also Wood v. Milyard, 566 U.S. 463, __, 132 S. Ct. 1826, 1832, 182 L. Ed. 2d
733 (2012).

                                            2
determination that Federated had insufficient knowledge to seek rescission before

the action was filed, and similarly supported the determination that Warkentin’s

misrepresentations had, themselves, successfully deprived Federated of that

knowledge.3

      On the merits, our review of the record as a whole4 satisfies us that

Warkentin did make material false representations regarding his health and did so

“willfully . . . with knowledge of [their] falsity.”5 Federated did have the right to

rescind in case of fraud, and properly exercised that right here. See United Fid.

Life Ins. Co. v. Emert, 49 Cal. App. 4th 941, 946, 57 Cal. Rptr. 2d 14, 18 (1996);

see also Cal. Ins. Code § 359. The district court did not err in deciding that there




      3
       See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed.
2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986).
      4
          See Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1185 (9th Cir.
2016).
      5
       See Cummings v. Fire Ins. Exch., 202 Cal. App. 3d 1407, 1418, 249 Cal.
Rptr. 568, 574 (1988); see also Telford v. N.Y. Life Ins. Co., 9 Cal. 2d 103, 106–07,
69 P.2d 835, 837–38 (1937) (per curiam); Lunardi v. Great-W. Life Assurance Co.,
37 Cal. App. 4th 807, 820, 44 Cal. Rptr. 2d 56, 62 (1995). Among other things,
while Warkentin indicated that he had not seen a chiropractor during the previous
five years, he had, in fact, seen one on forty occasions for lower back problems.

                                           3
was no material dispute of fact on that issue.6

      AFFIRMED.




      6
        Warkentin asserts that even if the policy was properly rescinded, his other
causes of action survive. However, he overlooks the fact that rescission means that
the policy was void ab initio. See Imperial Cas. & Indem. Co. v. Sogomonian, 198
Cal. App. 3d 169, 184, 243 Cal. Rptr. 639, 646–47 (1988). Therefore, essentially
“all rights of the insured . . . [were] extinguished.” Id. at 184, 243 Cal. Rptr. at
647. Because all of his claims hinged on the existence of a policy, they were
extinguished along with it.

                                           4
