                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 23 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DONNA C. RAY,                                    No. 11–15504

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05598-RS

  v.
                                                 MEMORANDUM *
PRUDENTIAL INSURANCE
COMPANY OF AMERICA,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                           Submitted October 19, 2012 **
                             San Francisco, California

Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.

       Plaintiff-Appellant Donna C. Ray appeals the district court’s decision




       *
             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).

                                          1
granting summary judgment on her claims relating to Defendant-Appellee

Prudential Insurance Company of America (“Prudential”)’s denial of her claim for

long-term disability benefits. Prudential denied Ray’s claim in 1995, but Ray did

not file this action until 2009. Ray concedes that her claims are time barred unless

the doctrines of equitable estoppel or waiver apply. We review the district court’s

decision to grant summary judgment de novo. Michelman v. Lincoln Nat’l Life

Ins. Co., 685 F.3d 887, 892 (9th Cir. 2012) (citation omitted). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.   1



      Relying on Spray, Gould & Bowers v. Associated International Insurance

Co., 71 Cal. App. 4th 1260, 1266-74 (1999), Ray argues that equitable estoppel

should preclude Prudential from asserting the statute of limitations defense because

it had a duty to disclose the statute of limitations to her pursuant to Cal. Code Regs.

tit. 10, § 2695.4(a) and § 2695.7(f). Section 2695.4(a) does not apply here because

by its own terms it applies to “time limits . . . of any insurance policy” and not a

statutory limitations period. See, e.g., Juarez v. 21st Century Ins. Co., 105 Cal.

App. 4th 371, 375-76 (2003) (stating that “by its plain language the regulation

requires disclosure of time limits contained in an insurance policy rather than time



       1
        The parties are familiar with the facts, and we repeat them here only as
necessary to explain our decision.

                                           2
limits set forth in a statute”).

       Ray raises her argument concerning § 2695.7(f) for the first time on appeal.

Although Ray argues that this presents a “purely legal issue,” there was evidence

in the record suggesting that Ray was represented by counsel in 1995, which would

thereby have relieved Prudential of any obligation under § 2695.7(f). This is a

factual issue that is dependent on the factual record developed by the parties before

the district court and if we were to consider it, it would necessarily prejudice

Prudential. See Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1005 (9th Cir.

2004). Accordingly, we decline to consider it.

       Ray also argues that Prudential waived the statute of limitations defense by

agreeing to consider her 2008 appeal on the merits. Generally, an insurer’s “denial

of coverage on one ground does not, absent clear and convincing evidence to

suggest otherwise, impliedly waive grounds not stated in the denial.” Waller v.

Truck Ins. Exch., Inc., 11 Cal. 4th 1, 31 (1995). Additionally, the Supreme Court

of California has previously stated that an insurer’s failure to invoke an applicable

limitation when denying a claim “cannot, as a matter of law, amount to a waiver[.]”

Prudential-LMI Commercial Ins. v. Superior Court, 51 Cal. 3d 674, 690 n.5

(1990). Applying California law, we have previously explained that we are bound

by Prudential-LMI. See Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1163-64 (9th


                                           3
Cir. 1995). Under the applicable law, Prudential did not waive the statute of

limitations defense by considering Ray’s belated appeal on the merits long after the

limitations period had expired.

      AFFIRMED.




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