                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 20 2010

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

RODERICK HERBERT,                                No. 08-15757

             Plaintiff - Appellant,              D.C. No. 4:06-CV-05532-SBA

  v.
                                                 MEMORANDUM *
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,

             Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                 Saundra B. Armstrong, District Judge, Presiding

                           Submitted January 15, 2010**
                             San Francisco, California

Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.

       In February 2002, Roderick Herbert purchased an insurance policy from

State Farm Mutual Automobile Insurance Company (“State Farm”) for his Harley


        *
             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. See Fed. R. App. P. 34(a)(2).
Davidson Road King motorcycle. Roughly three years later, Herbert reported that

his motorcycle had been stolen and filed a claim with State Farm, prompting the

insurer to investigate the circumstances of the theft. State Farm ultimately denied

Herbert’s claim, concluding that he violated his policy’s “fraud or concealment”

clause by making several misrepresentations during the investigation. These

included Herbert’s suggestion that his criminal history was limited to juvenile

arrests or convictions, though he had actually served time in state prison for

multiple counts of motor vehicle theft.

      After State Farm denied his claim, Herbert filed suit in California state court

for breach of contract and breach of the implied covenant of good faith and fair

dealing. State Farm removed the case to federal court, asserting diversity

jurisdiction, and moved for summary judgment. The district court granted the

motion, and Herbert appealed. We affirm.

      We review a district court’s grant of summary judgment de novo. United

Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 776 (9th Cir. 2009).

Under California law, an insurer may defend against a breach of contract claim by

demonstrating that the insurance policy is void under a fraud or concealment

clause. Cummings v. Fire Ins. Exch., 249 Cal. Rptr. 568, 574 (Ct. App. 1988). A

fraud or concealment clause voids a policy if a material misrepresentation is


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“knowingly and willfully made, with intent to deceive the insurer.” Id. at 572

(quoting Claflin v. Commonwealth Ins. Co., 110 U.S. 81, 95 (1884)).

      Materiality “is a mixed question of law and fact that can be decided as a

matter of law if reasonable minds could not disagree on the materiality of the

misrepresentations.” Id. at 573. Under Herbert’s policy, State Farm was only

obligated to pay for “accidental” losses, not thefts that may have been occasioned

by the insured. Consequently, any reasonable jury would conclude that Herbert’s

conviction of three counts of motor vehicle theft was reasonably relevant to State

Farm’s investigation. See id. (instructing that “materiality is determined by its

prospective reasonable relevance to the insurer’s inquiry”).

      Although an insured’s mental state is a question of fact, “the intent to

defraud the insurer is necessarily implied when the misrepresentation is material

and the insured wilfully makes it with knowledge of its falsity.” Id. at 574.

Herbert’s declaration is devoid of specific facts to innocently explain or clarify his

misrepresentations regarding his criminal history. When pressed by the district

court at oral argument, Herbert’s counsel conceded that these misrepresentations

were deliberate. Under these circumstances, Herbert failed to create a genuine

issue of material fact as to whether he deliberately misrepresented his criminal

history, and the district court was permitted to infer that he did so with the intent to


                                           3
deceive State Farm.

      As to Herbert’s claim for breach of the implied covenant of good faith and

fair dealing, State Farm presented several declarations by individuals with personal

knowledge, as well as supporting documentary evidence, indicating that its

investigation was performed reasonably and in good faith. In opposition to

summary judgment, Herbert’s declaration again responded with conclusory

accusations and argument rather than specific facts that could lead a reasonable

jury to find in his favor. Accordingly, the district court properly granted State

Farm’s motion for summary judgment on this claim as well. See, e.g., FTC v.

Publ’g Clearing House Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory,

self-serving affidavit, lacking detailed facts and any supporting evidence, is

insufficient to create a genuine issue of material fact.”).

      AFFIRMED.




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