                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 13 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HARTFORD LIFE AND ANNUITY                        No. 12-55464
INSURANCE COMPANY,
                                                 D.C. No. 2:10-cv-07560-PSG-
              Plaintiff - Appellant,             DTB

  v.
                                                 MEMORANDUM*
DORIS BARNES FAMILY 2008
IRREVOCABLE TRUST and DIANE
GRIMMIG, as Successor Trustee of the
Doris Barnes Family 2008 Irrevocable
Trust,

              Defendants - Appellees,

  and

JOHANN JOHN JEAN,

              Defendant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted January 9, 2014**
                                Pasadena, California

Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.

      Plaintiff-Appellant Hartford Life and Annuity Insurance Company

(Hartford) appeals from the district court’s order granting Defendants-Appellees’

(Defendants) motion for summary judgment and denying Hartford’s motion for

summary judgment. Because the parties are familiar with the facts and procedural

history of this case, we repeat only those facts necessary to resolve the issues

raised on appeal. We affirm.

      Hartford contends that the Barnes Policy is void as a “gaming or wagering”

policy under section 252 of the California Insurance Code. But an insurance policy

is an impermissible “gaming or wagering” policy only if there is no insurable

interest at the time the policy takes effect. Paul Revere Life Ins. Co. v. Fima, 105

F.3d 490, 493 (9th Cir. 1997); Jimenez v. Protective Life Ins. Co., 8 Cal. App. 4th

528, 536 (1992). At the time the Barnes Policy took effect, the trust, as the owner

and beneficiary of the Policy, had an insurable interest in the life of its settlor. See

Lincoln Life & Annuity Co. of N.Y. v. Berck, No. D056373, 2011 WL 1878855, at

*6 (Cal. Ct. App. May 17, 2011); Shaw v. Johnson, 59 P.2d 876, 879 (Cal. Dist. Ct.

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                            2
App. 1936). Gary Barnes, the trustee of the trust, had an insurable interest in his

mother’s life. See Cal. Ins. Code § 10110.1(a). Donald Barnes, the beneficiary of

the trust, had an insurable interest in the life of his wife. See id. And Doris Barnes

had an insurable interest in her own life. See Cal Ins. Code § 10110.1(b). Thus,

the Barnes Policy is not void as a “gaming or wagering” policy.

       There is no merit to Hartford’s contention that the Barnes Policy is void ab

initio because the Barnes family always intended to sell it. The plain language of

the California Insurance Code permits owners of life insurance policies to transfer

such policies to third parties who lack an insurable interest. See Cal. Ins. Code §

10130. And the California Court of Appeal recently explained that a pre-existing

intent to transfer life insurance policies “does not negate the fact that when the trust

acquired the policies, they were supported by an insurable interest.” Berck, 2011

WL 1878855, at *7.1

       We also reject Hartford’s argument that the Barnes Policy is void because

Doris Barnes was not insurable for $8.75 million. “An individual has an unlimited

insurable interest in his or her own life . . . and may lawfully take out a policy . . .

and have the policy made payable to whomsoever he or she pleases, regardless of



       1
        The pre–2010 version of California Insurance Code section 10110.1 is
applicable here.

                                            3
whether the beneficiary designated has an insurable interest.” Cal. Ins. Code §

10110.1(b) (emphasis added). Thus, Doris Barnes was legally entitled to insure

her own life in any amount she wished. Her family was similarly entitled to obtain

such a policy, as the Insurance Code provides that an insurable interest includes “a

substantial interest engendered by love and affection in the case of individuals

closely related by blood or law.” Cal. Ins. Code § 10110.1(a).

      Hartford’s remaining arguments are similarly unavailing. The parties’

dispute regarding the validity of the trust that acquired the Barnes Policy is not a

“genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), because it does not

“affect the outcome of the suit under the governing law . . . .” Nat’l Ass’n of

Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012); see also

Goodrich v. Briones (In re Schwarzkopf), 626 F.3d 1032, 1037 (9th Cir. 2010).

Further, Hartford proffers no evidence from which a rational trier of fact could

conclude that an agreement to sell the Barnes Policy was reached before the Policy

took effect. See Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir.

1996) (“[M]ere allegation and speculation do not create a factual dispute for

purposes of summary judgment.”).

      For the foregoing reasons, we affirm the judgment of the district court.

             AFFIRMED.


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